                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                       PUBLISH                   July 8, 2014
                                                             Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS             Clerk of Court

                                    TENTH CIRCUIT


 LAWRENCE JAMIR TAYLOR,

          Petitioner - Appellant,
                                                       No. 14-5030
 v.

 TERRY MARTIN, Warden,

          Respondent - Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. No. 13-CV-00363-TCK-FHM)


Submitted on the briefs: *

M. Michael Arnett of Arnett Law Firm, Oklahoma City, Oklahoma, for Petitioner
- Appellant.

Joshua L. Lockett of Office of the Attorney General for the State of Oklahoma,
Oklahoma City, Oklahoma, for Respondent - Appellee (did not file a brief in this
proceeding pursuant to 10th Cir. R.22.1(B).)


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
KELLY, Circuit Judge.


      Petitioner–Appellant Lawrence Jamir Taylor seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his petition for writ

of habeas corpus under 28 U.S.C. § 2254. Taylor v. Martin, No. 13-cv-363-TCK-

FHM, 2014 WL 357083 (N.D. Okla Jan. 31, 2014). We deny his request and

dismiss his appeal.



                                     Background

      On May 19, 2009, an Oklahoma jury found Mr. Taylor guilty of first degree

murder and shooting with intent to kill. App. 6; Taylor, 2014 WL 357083, at *1.

He was sentenced to consecutive life terms of imprisonment. Taylor, 2014 WL

357083, at *1. On February 16, 2011, the Oklahoma Court of Criminal Appeals

(OCCA) affirmed his convictions and sentences. Taylor v. State, 248 P.3d 362,

380 (Okla. Crim. App. 2011). He did not seek a writ of certiorari from the United

States Supreme Court. Taylor, 2014 WL 357083, at *3.

      On September 16, 2011, Mr. Taylor filed an application for post-conviction

relief in state district court. Id. at *4. The focus of his claim was that a

government witness, Jason Cheatham, lied at trial when he testified that Mr.

Taylor had confessed that he shot the two victims. Id. To back up this claim, Mr.

Taylor offered an affidavit executed by Mr. Cheatham, in which Mr. Cheatham


                                         -2-
recanted his testimony that Mr. Taylor had confessed to him. Id. On December

29, 2011, the state district court denied post-conviction relief. Id. Mr. Taylor

appealed to the OCCA, alleging that procedural inadequacies and evidentiary

rulings in the post-conviction proceedings violated his constitutional rights. Id.

The OCCA affirmed the denial of post-conviction relief. Id.

      On June 19, 2013, Mr. Taylor filed a petition under 28 U.S.C. § 2254 in

federal district court. Id. The government responded with a motion to dismiss

Mr. Taylor’s petition as time barred. Id. The district court agreed and dismissed

Mr. Taylor’s petition with prejudice and denied a certificate of appealability. Id.

at *9. Mr. Taylor appealed to this court.



                                      Discussion

      A COA requires that an applicant make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district

court denied a § 2254 petition on procedural grounds, the petitioner must

demonstrate that it is reasonably debatable whether (1) the petition states a valid

claim of the denial of a constitutional right and (2) the district court’s procedural

ruling in correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Without both

showings, no appeal is warranted.

      The Antiterrorism and Effective Death Penalty Act imposes a one-year

limitation period on petitions filed under 28 U.S.C. § 2254. 28 U.S.C. §

                                         -3-
2244(d)(1). Relevant here, the limitation period runs from the later of:

              (A) the date on which the judgment became final by the
              conclusion of direct review or the expiration of the time
              for seeking such review; . . . or

              (D) the date on which the factual predicate of the claim
              or claims presented could have been discovered through
              the exercise of due diligence.

Id. § 2244(d)(1)(A), (D). The district court found that Mr. Taylor’s petition was

time barred under either of these provisions. Taylor, 2014 WL 357083, at *5.

First, it found that under § 2244(d)(1)(A), Mr. Taylor’s convictions became final

on May 17, 2011, after the OCCA concluded its direct review and after the 90-day

period for petitioning the United States Supreme Court for a writ of certiorari had

lapsed. Id. Given statutory tolling for his post-conviction proceedings—which

lasted from September 16, 2011, to August 3, 2012—Mr. Taylor had until April 5,

2013, to file his petition; he filed it on June 19, 2013, more than two months too

late. Id. at *6.

       Second, the court found that Mr. Taylor did not benefit from a later accrual

date under § 2244(d)(1)(D). Id. at *5. The “factual predicate” underlying his

claim—that Mr. Cheatham perjured himself at trial—was discovered, or could

have been discovered, on May 6, 2009, the day Mr. Cheatham testified. Id. That

is, Mr. Taylor knew or should have known that Mr. Cheatham’s testimony was

false when he heard Mr. Cheatham testify to something Mr. Taylor knew to be

untrue. See id. The fact that Mr. Taylor first obtained an affidavit from Mr.

                                         -4-
Cheatham to this effect in August 2011 did not change this conclusion. Id.

      On appeal, Mr. Taylor, through his attorney, only challenges the second of

these holdings. Aplt. Br. 7. Mr. Taylor argues that Mr. Cheatham’s affidavit was

“newly discovered evidence,” and, “even though he knew that Mr. Cheatham lied

at trial,” he needed an affidavit saying that to avail himself of post-conviction

relief. Id. at 10. He also invokes Mr. Cheatham’s “Fifth Amendment right to

remain silent,” id. at 8, and “the state rules of evidence,” id. at 10.

      Our unpublished case, Craft v. Jones, 435 F. App’x 789 (10th Cir. 2011)

(unpublished), 1 is persuasive. There, the petitioner sought to avail himself of §

2244(d)(1)(D) because he had “new evidence in the form of an affidavit.” Id. at

791. The affiant claimed that he was present during the stabbing for which the

petitioner was convicted, and that the petitioner had committed the stabbing in

self-defense. Id. This court held that the “date on which the factual predicate of

the claim . . . could have been discovered” was the date of the stabbing, not the

date of the affidavit. Id. (quoting 28 U.S.C. § 2244(d)(1)(D)). If the affiant was

present at the stabbing, as he claimed, then the petitioner would have been aware

that the affiant was a witness to the event long before the affidavit. Id.

      The same is true here. The “factual predicate” of Mr. Taylor’s claim is that

Mr. Cheatham lied when he testified on May 6, 2009, not that he swore out an


      1
        This unpublished opinion is cited for its persuasive value only. 10th Cir.
R. 32.1(A).

                                          -5-
affidavit to that effect in August 2011. This fact was apparent much sooner than

May 17, 2011—the date on which Mr. Taylor’s convictions became final. Mr.

Taylor’s assertion that “he was dependant [sic] on Chatham’s [sic] decision to

waive his Fifth Amendment Rights and prepare an affidavit,” Aplt. Br. 8, is

without support. See United States v. Wong, 431 U.S. 174, 178 (1977) (“[T]he

Fifth Amendment privilege does not condone perjury.”); Bellis v. United States,

417 U.S. 85, 90 (1974) (“[T]he Fifth Amendment privilege is a purely personal

one.”). Mr. Taylor’s assertion that “[w]ith no affidavit, no cause would have been

available under the state law,” Aplt. Br. 9, is unavailing absent a demonstration of

what state law requires. The same goes for his assertion that he “could not have

complied with the state rules of evidence without” an affidavit, id. at 10; Mr.

Taylor leaves us guessing as to how the evidence rules barred him from pursuing

his claim absent sworn testimony from Mr. Cheatham.

      We are persuaded that reasonable jurists would not debate whether Mr.

Taylor’s § 2254 petition was time barred. He has not made a substantial showing

that the district court erred by finding that “the date on which the factual

predicate of the claim . . . could have been discovered” was earlier than May 17,

2011, “the date on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A),

(D). We need not reach the district court’s alternative holding concerning the

availability of a federal right to state post-conviction review. See Taylor, 2014

WL 357083, at *8.

                                         -6-
We DENY a COA and DISMISS this appeal.




                            -7-
