                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           August 29, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 TRACY H. NEIBERGER,

        Petitioner - Appellant,

 v.                                                         No. 14-5059
                                                (D.C. No. 4:13-CV-00751-GKF-TLW)
 TRACY McCOLLUM, Warden,                                  (N.D. Oklahoma)

        Respondent - Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       Defendant Tracy Neiberger applied for relief under 28 U.S.C. § 2254 more than

nine years after his state-court conviction became final. The United States District Court

for the Northern District of Oklahoma dismissed the application as untimely. Defendant

now seeks a certificate of appealability (COA) from this court to appeal the dismissal.

See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal dismissal of § 2254 motion).

We deny the request and dismiss the appeal.

I.     BACKGROUND

       Defendant pleaded guilty to five offenses and was sentenced on July 18, 2002.

After he unsuccessfully moved to withdraw his pleas, he sought review in the Oklahoma
Court of Criminal Appeals (OCCA), which denied relief on April 25, 2003. He did not

seek further review in the United States Supreme Court. On April 26, 2004, he filed with

the state trial court a motion for sentence modification, a motion which was denied 11

days later. He did not appeal. On December 28, 2011, he filed with the state trial court a

motion for postconviction relief, which was denied; he did not perfect a timely appeal to

the OCCA. And on May 22, 2013, he again unsuccessfully sought postconviction relief

in the trial court, and the OCCA affirmed the denial of relief.

       Defendant filed his § 2254 application on November 18, 2013. He identified eight

alleged errors: (1) the state court’s fact findings were insufficient to protect his federal

constitutional rights, (2) the state court denied him due process and equal protection by

declining to rule on his May 2013 motion for a new trial, (3) the state court improperly

refused to follow opinions by the Tenth Circuit and the United States Supreme Court, (4)

the state court erred by issuing orders based on cases that had been overruled, (5) the

state court erred in applying the Double Jeopardy Clause, (6) the state court should not

have tried defendant without establishing that he was mentally competent to stand trial,

(7) the state court denied him due process under the Fourteenth Amendment by

sentencing him under a repealed sentencing range, and (8) Defendant’s trial and appellate

counsel were ineffective. The district court dismissed the application as untimely. It

ruled that Defendant was entitled to only 11 days of statutory tolling while Defendant’s

motion for sentence modification was pending and that Defendant was not entitled to

equitable tolling. The court also denied a COA.
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II.    DISCUSSION

       A.     Standard of Review

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

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) 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). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. If the application was denied on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show “that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

       B.     Timeliness and Statutory Tolling

       28 U.S.C. § 2244(d) provides:

       (1) 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. The limitation period shall run from the latest of—
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              (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;
              (B) the date on which the impediment to filing an application created
              by State action in violation of the Constitution or laws of the United
              States is removed, if the applicant was prevented from filing by such
              State action;
              (C) the date on which the constitutional right asserted was initially
              recognized by the Supreme Court, if the right has been newly
              recognized by the Supreme Court and made retroactively applicable
              to cases on collateral 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.
       (2) The time during which a properly filed application for State post-
       conviction or other collateral review with respect to the pertinent judgment
       or claim is pending shall not be counted toward any period of limitation
       under this subsection.

The district court explained that Defendant’s state-court conviction became final on

July 24, 2003, upon expiration of the 90-day period (after the OCCA denied relief on

direct appeal) for seeking a writ of certiorari from the Supreme Court. Defendant does

not challenge this determination and we agree. The one-year limitation period under

§ 2244(d)(1) for challenging his conviction therefore commenced on July 25, 2003.1



1
       We agree with the district court that none of the Supreme Court cases cited by
Defendant would delay commencement of the limitation period under § 2244(d)(1)(C).
And Defendant likewise showed no basis for application of § 2244(d)(1)(B). He does not
raise an argument under either provision in this court.
       Also, some of Defendant’s claims appear to challenge the conduct of his state
postconviction proceedings rather than his conviction (for example, Defendant’s claim
that he was denied due process and equal protection in his May 2013 state-court
postconviction proceeding). But such claims are not cognizable under § 2254 and must
be dismissed regardless of timeliness. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th
Cir. 1998) (“[B]ecause the constitutional error he raises focuses only on the State’s post-
                                             4
       We also agree with the district court that Defendant was entitled to tolling under

§ 2244(d)(2) for the 11 days from the time he filed his motion for sentence modification

to the time the state court denied the motion. See Wall v. Kholi, 131 S. Ct. 1278, 1287

(2011). He was also entitled, however, to tolling for the 30 days during which he could

have appealed the denial of his motion. See Williams v. Gibson, 237 F.3d 1267, 1269

(10th Cir. 2001); Okla. Stat. tit. 22, § 1087 (1970) (“A final judgment entered under this

act [the Oklahoma Post-Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080 et seq.]

may be appealed to the Court of Criminal Appeals on petition in error filed either by the

applicant or the state within thirty (30) days from the entry of the judgment.”). This

means that Defendant could have filed his § 2254 application by September 4, 2004,

which would be extended to September 7 because September 4 was the Saturday of the

Labor Day Weekend. See Fed. R. Civ. P. 6(a)(1)(C)).

       When Defendant filed his § 2254 application on November 18, 2013, he was more

than nine years past the one-year deadline.

       C.     Equitable Tolling

       Defendant argues in this court that his claim should not be time-barred because a

state trial court instructed him that he could not challenge his July 2002 conviction until

he had first challenged a prior conviction, which he did in a prior case before this circuit.

Our decision in that case, however, notes that Defendant made no effort to challenge the



conviction remedy and not the judgment which provides the basis for his incarceration, it
states no cognizable federal habeas claim.”)
                                              5
prior 1984 conviction until February 2010. See Neiberger v. Rudek, 450 F. App’x 719,

720 (10th Cir. 2011). This tolling argument has no merit. As for the equitable-tolling

arguments raised by Defendant in district court, we agree with that court’s unchallenged

analysis rejecting those arguments.

III.   CONCLUSION

       We DENY a COA and DISMISS the appeal.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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