                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  April 17, 2013
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 BRYCE MARTIN AGNEW,

              Petitioner-Appellant,                     No. 12-5207
                                            (D.C. No. 4:12-CV-00067-GKF-PJC)
 v.                                                    (N.D. of Okla.)
 TERRY MARTIN, Warden,

              Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges. **


      Bryce Agnew, a state prisoner proceeding pro se, requests a certificate of

appealability (COA) to appeal the district court’s denial of his untimely petition

for habeas relief under 28 U.S.C. § 2254. Agnew also requests leave to proceed

in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we deny both requests and dismiss the appeal.




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                I. Background

      In February 2010, Agnew entered a blind guilty plea in Oklahoma state

court to one count of lewd molestation of an eleven-year-old girl. In the summary

of facts for his guilty plea, Agnew wrote, “On or about July 9 2009 I felt the

private parts of MTA, whose birth date is 10-6-97 in Washington County,

Oklahoma and I was 66 years old.” R., Vol. 1 at 26 (punctuation in original). On

May 10, 2010, after a hearing, the judge sentenced Agnew to twenty years’

imprisonment, with five years suspended, and fined Agnew $2,500, including

$1,000 in victim compensation. Agnew did not file a motion to withdraw his plea

nor did he appeal the conviction or sentence.

      He did, however, file a one-page request for judicial review almost a year

later, on March 4, 2011. He asked the trial court to “consider suspending part of

the time imposed, or in the alternative, reduce the total sentence as imposed.” Id.

at 39. The request was summarily denied on March 15, 2011.

      Next, Agnew filed an application for post-conviction relief in state court on

November 17, 2011. The trial court denied his application on November 28,

noting that Oklahoma law “prohibits the assertion of claims that could have been

raised on direct appeal.” Id. at 43; accord Okla. Stat. Ann. tit. 22, § 1086 (West

2013). The court did, however, remind Agnew that he had “thirty (30) days from

the date of this order” to file an appeal with the Oklahoma Court of Criminal

Appeals (OCCA). R., Vol. 1 at 43 (capitalization omitted). Agnew waited thirty-

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one days to file his appeal, and for his untimeliness, the OCCA declined

jurisdiction and dismissed the appeal pursuant to its Rule 5.2(C)(2).

      Finally, on February 13, 2012, Agnew filed a petition for a writ of habeas

corpus in the Western District of Oklahoma. The district court observed that,

even accounting for every possible tolling period, Agnew’s petition was filed well

after the statute of limitations for habeas petitions from state prisoners, per the

Antiterrorism and Effective Death Penalty Act of 1996. The court also noted

Agnew’s pleadings fell far short of alleging the extraordinary circumstances

necessary for equitable tolling of the limitations period. On these grounds, the

district court denied Agnew’s petition.

      Now Agnew requests a COA to appeal the district court’s decision.

                                 II. Analysis

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this court first issues a COA. Id. § 2253(c)(1)(A). A

COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. § 2253(c)(2). To make such a showing, a

petitioner must demonstrate that “reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). Where,

as here, the district court denies habeas relief on procedural grounds, the

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petitioner must demonstrate that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. at 478.

      In his COA request, Agnew recites no facts and makes no argument.

Instead, he attempts merely to incorporate by reference his filings below. But

“[l]ike other circuit courts, we do not consider this acceptable argument.”

Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623–24 (10th Cir. 1998).

“[A]rguments not set forth fully in the opening brief are waived . . . .” Id. at 624;

see also, e.g., Fed. R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain

. . . the argument, which must contain: appellant’s contentions and the reasons for

them . . . .”). So we decline to address whether the district court erred in

determining that the statute of limitations had run and that equitable tolling does

not apply.

      To be sure, Agnew is proceeding pro se, so we must construe his filings

liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). But

where Agnew does not file anything of substance, there is nothing to construe.

Cf. id. at 1110 (concluding “if the court can reasonably read the pleadings to state

a valid claim on which the plaintiff could prevail, it should do so despite [lack of

legal authority, confused legal analysis, grammatical mistakes,] or [] unfamiliarity

with pleading requirements,” but also concluding “[t]he broad reading of the

plaintiff’s complaint does not relieve the plaintiff of the burden of alleging

sufficient facts on which a recognized legal claim could be based”). Agnew

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apparently did not review the district court’s decision carefully enough and

explain—even in the barest of terms—how the lower court erred, and we will not

“assume the role of advocate for the pro se litigant,” id., by searching for an error

sua sponte here. 1

                                 III. Conclusion

      Accordingly, we DENY Agnew’s request for a COA, DENY his motion to

proceed IFP, and DISMISS his appeal.

                                                            Entered for the Court,

                                                            Timothy M. Tymkovich
                                                            Circuit Judge




      1
         In an abundance of caution, we did review the district court’s statute of
limitations analysis and Agnew’s conclusory argument below that his petition was
untimely “throug[h] no fault of his own,” R., Vol. 1 at 124. We found no error.

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