                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALSJanuary 28, 2013
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 ANDREW THOMAS BURNS, SR.,

              Petitioner - Appellant,
                                                        No. 12-5109
 v.                                        (D.C. No. 4:11-CV-00591-CVE-TLW)
                                                        N.D. Okla.
 JUSTIN JONES, Director,

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.


      After examining petitioner’s brief and the 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)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This case is before the court on a request by Andrew Thomas Burns, Sr. for

a certificate of appealability (“COA”). Burns seeks a COA so he can appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a

§ 2254 petition unless the petitioner first obtains a COA).
      In 1990, Burns was convicted by a jury of first degree murder and

sentenced to life imprisonment without the possibility of parole. He attempted to

pursue a direct appeal out of time by filing an application for post-conviction

relief in Oklahoma state court on April 26, 1990. The request was denied and that

denial was affirmed by the Oklahoma Court of Criminal Appeals. Burns filed

three additional state applications for post-conviction relief, all of which were

denied by the Oklahoma courts. Burns’s § 2254 habeas corpus petition was filed

with the United States District Court for the Northern District of Oklahoma on

August 25, 2011. 1

      Respondent moved to dismiss Burns’s habeas action as time-barred,

arguing it was filed after the expiration of the one-year limitations period

established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations for § 2254

applications). The district court concluded Burns’s convictions became final on

March 12, 1990, prior to the enactment of the AEDPA. Consequently, Burns had

until April 24, 1997, to file his federal habeas petition. See Hoggro v. Boone, 150

F.3d 1223, 1225 (10th Cir. 1998). The district court rejected Burns’s assertion he

was entitled to equitable tolling of the AEDPA limitations period, concluding his



      1
      Burns’s § 2254 petition was filed in the United States District Court for
the Western District of Oklahoma and transferred to the Northern District of
Oklahoma on September 19, 2011.

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allegations of ignorance of the law and alleged illiteracy did not merit equitable

tolling. Accordingly, the court granted Respondent’s motion and dismissed

Burns’s habeas petition. Burns attempts to appeal the dismissal of his § 2254

petition.

      To be entitled to a COA, Burns must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling of the limitations period for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).

      In his appellate brief, Burns makes no claim of entitlement to equitable

tolling, failing to even reference his burden of showing he diligently pursued his

claims but failed to file in a timely manner because of “extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). Instead, Burns appears to concede his federal habeas petition is

untimely but argues application of the one-year limitations period to a person in

his position raises serious constitutional questions. See Miller v. Marr, 141 F.3

976, 978 (10th Cir. 1998). After reviewing the record and considering the claims

                                          -3-
Burns is attempting to raise in his § 2254 petition, we reject his argument that

applying the limitations period in this case renders the habeas remedy inadequate

or ineffective. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Burns

asserts he is illiterate and was denied counsel during a critical stage of the

proceedings, 2 resulting in his inability to appeal his conviction. Cf. Triestman v.

United States, 124 F.3d 361, 376-380 (2d Cir. 1997) (holding habeas review was

available to federal prisoner claiming actual innocence who was barred from

bringing a successive § 2255 motion because the denial of collateral review would

raise sufficiently serious constitutional questions under the Eighth Amendment

and the Due Process Clause). The record contradicts these assertions. First,

nowhere in his brief does Burns assert he is actually innocent. See id. at 379.

Further, in his § 2254 petition, Burns concedes the Oklahoma state court found he

“chose not to appeal his conviction, even though he was advised he could appeal.”

When it denied Burns’s fourth application for post-conviction relief, the

Oklahoma court found that Burns’s stand-by counsel spoke with him “at length

regarding all of his rights to appeal and advised him to appeal” but Burns refused.

Thus, the record contradicts his unsupported assertions that he was denied counsel

and did not understand his right to appeal.


      2
       It is unclear whether Burns’s claim arises under United States v. Cronic,
466 U.S. 648 (1984), or Strickland v. Washington, 466 U.S. 668 (1984), because
his counseled § 2254 petition cites neither case. In any event, the distinction is
irrelevant to our disposition of this matter.

                                          -4-
      This court has reviewed Burns’s application for a COA and appellate brief,

the district court’s Order dated May 10, 2012, and the entire record on appeal.

That review clearly demonstrates the district court’s dismissal of Burns’s § 2254

petition as untimely is not deserving of further proceedings or subject to a

different resolution on appeal. Accordingly, we deny his request for a COA and

dismiss this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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