                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          March 22, 2006
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court

 MICHAEL DON PINKERTON,

        Petitioner - Appellant,
                                                         No. 05-6323
 vs.                                               (D.C. No. 05-CV-727-T)
                                                         (W.D. Okla.)
 HASKELL HIGGINS, Warden,

        Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


       Michael Don Pinkerton, an inmate appearing pro se, seeks a certificate of

appealability (“COA”) to appeal from the district court’s dismissal of his habeas

petition, filed pursuant to 28 U.S.C. § 2254. In order to merit a COA, Mr.

Pinkerton must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

To make such a showing, he must demonstrate that reasonable jurists would find

the district court’s resolution of the constitutional issues contained in his motion

debatable or wrong. Miller-El, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473,

484 (2000). Because Mr. Pinkerton has not made that showing, we deny a COA
and dismiss the appeal.

      On June 13, 2001, Mr. Pinkerton was convicted, on a plea of nolo

contendere, of unlawful possession of three or more controlled dangerous

substances with intent to manufacture methamphetamine. He was sentenced to

twenty years imprisonment and a $50,000 fine. He did not apply to withdraw his

plea and filed no direct appeal. On November 24, 2004, Mr. Pinkerton filed for

post-conviction relief in state district court. That court denied relief on January

13, 2005, and the OCCA affirmed that denial on April 26, 2005. 1

      On June 23, 2005, Mr. Pinkerton filed his federal habeas petition. In that

petition, he raised two claims: (1) that the OCCA denied him due process by its

failure to address the merits of his Fifth, Sixth and Fourteenth Amendment

claims, R. Doc. 2 at 4, and (2) that the state district court’s failure to conduct an

evidentiary hearing or grant Mr. Pinkerton relief denied him due process. In his

habeas petition, Mr. Pinkerton also addressed the merits of his underlying claims,

including a defective charging document, ineffective assistance of counsel, an


      1
          Mr. Pinkerton’s brief to the OCCA is not part of this record. It appears,
however, from the OCCA decision, R. Doc. 2 Ex. 2, that he raised the following
arguments before the state district court: (1) that he was wrongfully charged and
convicted, (2) that the trial judge failed to properly address issues raised in the
district court, (3) that he was denied effective assistance of counsel, and (4) the
that district court erred in not sustaining a motion to suppress evidence. Id. In
affirming the district court findings, the OCCA held that the record fails to
support Mr. Pinkerton’s claims of ineffective assistance, and held that the rest of
Mr. Pinkerton’s claims had been waived by his failure to file a direct appeal. Id.

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involuntary and unknowing plea, and denial of equal protection. See R. Doc. 2.

      The magistrate’s report and recommendation concluded that Mr.

Pinkerton’s claims essentially constituted a request for the federal court to review

the state’s post-conviction procedure and that this was not cognizable in federal

habeas. The magistrate judge also noted that Mr. Pinkerton’s substantive

challenges were time barred given the one-year limitation period in 28 U.S.C. §

2244(d)(1)(A). The district court adopted the report and recommendation,

overruling Mr. Pinkerton’s objections.

      Where the district court dismisses a petition on procedural grounds, a COA

requires the inmate to 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 is correct. Slack, 529 U.S. at 484; see also

Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). To the extent that Mr. Pinkerton

has not abandoned his claims regarding Oklahoma’s post conviction relief

proceedings, the district court’s conclusion that such a claim is not cognizable in

habeas is not reasonably debatable. See, e.g., Phillips v. Ferguson, 182 F.3d 769,

772-73 (10th Cir. 1999); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).

      On appeal, Mr. Pinkerton argues that he received ineffective assistance of

counsel, there is an inadequate factual basis for the offense of conviction, and

that his plea was not knowing and voluntary. He faults the district court for


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denying a request for leave to supplement the record, presumably with a claim

developed with legal assistance. The district court’s conclusion that Mr.

Pinkerton’s claims are time-barred is not reasonably debatable. Federal law

provides that a “1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a State

court.” 28 U.S.C. § 2244(d)(1). This limitation period begins on “the date on

which the judgment became final by . . . the expiration of time for seeking

[direct] review.” 28 U.S.C. § 2244(d)(1)(A). Here it began ten days after the

entry of his plea. See Rule 4.2(A), Rules of the OCCA (in order to appeal a nolo

plea, defendant must move within ten days of entry of that plea). The limitations

period ran on June 13, 2002, well before he applied for state post-conviction

relief and federal habeas relief.

      The one-year limitations period is not jurisdictional and is subject to

equitable tolling in appropriate cases. Miller v. Marr, 141 F.3d 976, 978 (10th

Cir. 1998). Equitable tolling of the limitations period is only appropriate in “rare

and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000) (quotation omitted). Moreover, “[equitable tolling] is only available when

an inmate diligently pursues his claims and demonstrates that the failure to timely

file was caused by extraordinary circumstances beyond his control.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Mr. Pinkerton’s general claims of


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lack of access to an adequate law library and the complexity of Oklahoma post-

conviction procedure do not suffice to establish equitable tolling.

      Mr. Pinkerton argues that if the one-year limitation period bars his § 2254

claims, we should construe them pursuant to 28 U.S.C. §§ 2241 or 1651. Section

2241 is subject to the same one-year limitation period. Burger v. Scott, 317 F.3d

1133, 1138 (10th Cir. 2003). Moreover, because Mr. Pinkerton seeks to set aside

his state court conviction, his sole remedy lies in a habeas corpus petition.

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when state prisoner

challenges fact or duration of imprisonment and seeks release from that

imprisonment, sole federal remedy is a writ of habeas corpus); see also

Pennsylvania Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43

(1985) (“The All Writs Act [contained in 28 U.S.C. § 1651] is a residual source

of authority to issue writs that are not otherwise covered by statute. Where a

statute specifically addresses the particular issue at hand, it is that authority, and

not the All Writs Act, that is controlling.”). Thus, Mr. Pinkerton’s claims do not

lie under § 1651. The district court did not abuse its discretion in denying his

motion for leave to supplement the record.

      We DENY Mr. Pinkerton’s application for a COA and dismiss the appeal.

                                         Entered for the Court




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Paul J. Kelly, Jr.
Circuit Judge




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