                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS January 15, 2020
                                                                      Christopher M. Wolpert
                                    TENTH CIRCUIT                         Clerk of Court



 TA’SHAWN R. WILSON,

               Petitioner - Appellant,

 v.                                                           No. 19-6119
                                                       (D.C. No. 5:18-CV-00383-G)
 SCOTT CROW, Interim Director,                                (W.D. Okla.)

               Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MATHESON, McKAY, and BACHARACH, Circuit Judges.


       Petitioner Ta’Shawn Wilson, a state prisoner represented by counsel, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254

habeas petition as time-barred.

       In 2008, Petitioner pled guilty to several drug-related crimes in two state-court

cases, and his sentencing was deferred for five years subject to the terms and conditions

of his probation. In 2010, his sentences were accelerated based on numerous probation

violations, and the state court imposed various lengthy sentences of imprisonment on the


       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
charges, including several life sentences. In 2011, the state court granted his application

for judicial review and modified his sentences to include several concurrent forty-five-

year sentences and no life sentence. Petitioner subsequently filed various state-court

pleadings in an attempt to withdraw his guilty plea and/or invalidate the new sentences;

all of these state-court filings were unsuccessful. In April 2018, Petitioner initiated this

federal habeas proceeding.

       In a thorough report and recommendation, the magistrate judge who reviewed this

case concluded that, accounting for statutory tolling, Petitioner’s one-year limitations

period for filing his federal habeas petition expired on November 6, 2013. See 28 U.S.C.

§ 2244(d). The magistrate judge further concluded that Petitioner was not entitled to

equitable tolling because he had not shown that he “ha[d] been pursuing his rights

diligently.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (internal quotation

marks omitted). Among other things, the magistrate judge noted that there were several

periods of time in which Petitioner took no action to pursue his federal habeas claims,

including a period of more than two-and-a-half years which elapsed between the state

appellate court’s denial of his third application for post-conviction relief in January 2015

and his filing of a fourth application for post-conviction relief in September 2017.

       Petitioner filed an objection to the report and recommendation in which he did not

dispute the magistrate judge’s calculation of the limitations period but instead argued that

it would be unreasonable and inequitable to allow a nonjurisdictional limitations period to


                                             -2-
prevent him from pursuing his federal constitutional claims. The district court found this

argument to be unpersuasive and thus adopted the magistrate judge’s report and

recommendation in its entirety and dismissed the habeas petition as untimely.

       We conclude that reasonable jurists would not “find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). First, to the extent Petitioner now seeks to challenge the magistrate judge’s

calculation of the statutory limitations period, any such argument was waived by

Petitioner’s failure to raise this specific objection before the district court. See United

States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Second,

Petitioner has not shown, nor do we find, any error in the magistrate judge’s conclusion

that Petitioner is not entitled to equitable tolling because he failed to make the requisite

showing that he diligently pursued his rights. See Yang, 525 F.3d at 930. Finally, there is

no merit to Petitioner’s argument that the habeas statute of limitations is inapplicable

whenever a habeas petitioner argues that the state court’s decision was contrary to clearly

established federal law or involved an unreasonable determination of the facts. As the

magistrate judge and district court already explained, this argument, which would

effectively eviscerate the statute of limitations, is “disingenuous at best” (Appellant’s

App. at 11 (internal quotation marks omitted)) and finds no support in the law. See

McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013) (holding that habeas statute’s “time

limitations apply” in all but “a severely confined category[ of] cases in which new


                                              -3-
evidence shows it is more likely than not that no reasonable juror would have convicted

the petitioner” (internal quotation marks and brackets omitted); cf. Miller v. Marr, 141

F.3d 976, 977–78 (10th Cir. 1998) (holding that one-year limitations period for habeas

petitions survived Suspension Clause challenge where petitioner did not claim actual

innocence or incompetence because, among other things, equitable tolling is available for

inmates who diligently pursue federal constitutional claims).

       We therefore DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




                                            -4-
