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

                                     TENTH CIRCUIT                         January 25, 2018

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 MICHAEL ALEXANDER THOMPSON,

           Petitioner - Appellant,

 v.
                                                            No. 17-6218
 JANET DOWLING, Warden,                              (D.C. No. 5:17-CV-00758-F)
                                                            (W.D. Okla.)
           Respondent - Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MATHESON, KELLY, and MURPHY, Circuit Judges.


       Petitioner-Appellant Michael Thompson, an inmate appearing pro se, seeks a

certificate of appealability (COA) allowing him to appeal the district court’s

summary dismissal of his habeas petition as time-barred. Because the district court’s

procedural ruling is not reasonably debatable, we deny a COA and dismiss the

appeal.

       In 2009, Mr. Thompson pled guilty to child abuse in violation of Okla. Stat.

tit. 10, § 7115 (2009) (renumbered as Okla. Stat. tit. 21, § 843.5). 1 R. 5. He was

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
sentenced that same year and did not file a direct appeal. Id. at 5–6. In 2016, Mr.

Thompson filed a request for post-conviction relief in state court, which was denied

as untimely and affirmed by the Oklahoma Court of Criminal Appeals. Id. at 6–7,

25–27. He then brought a habeas petition under 28 U.S.C. § 2254, seeking relief

from his conviction and sentence. Id. at 5. Mr. Thompson’s petition was referred to

a magistrate judge, who issued a report and recommendation denying Mr.

Thompson’s petition as “untimely by over seven years.” Thompson v. Dowling, No.

CIV-17-758-F, 2017 WL 4414735, at *3 (W.D. Okla. Sept. 1, 2017). The district

court adopted the recommendation in full, dismissing the petition as time-barred and

denying a COA. Thompson v. Dowling, No. CIV-17-758-F, 2017 WL 4414261, at

*1 (W.D. Okla. Oct. 4, 2017).

      A person in state custody ordinarily has one year to apply for a writ of habeas

corpus from the date on which his or her judgment became final. See 28 U.S.C.

§ 2244(d)(1)(A) (2012). One exception to this is if the Supreme Court newly

recognizes a constitutional right and makes it applicable to cases on collateral review.

See id. § 2244(d)(1)(C). Mr. Thompson argues that his petition is timely because

Buck v. Davis, 137 S. Ct. 759 (2017), made the holdings of Martinez v. Ryan, 566

U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), retroactive on collateral

review. But that is incorrect: Buck explicitly declined to address whether Martinez

and Trevino applied retroactively on collateral review because that argument had




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been waived. 137 S. Ct. at 780. Consequently, Buck does not affect the timeliness

of Mr. Thompson’s petition.

      In addition to finding that 28 U.S.C. § 2244(d)(1)(C) did not apply to Mr.

Thompson’s petition, the magistrate judge found that statutory tolling did not apply

and that Mr. Thompson was not entitled to equitable tolling. Thompson, 2017 WL

4414735, at *3–4. The district court agreed, Thompson, 2017 WL 4414261, at *1,

and reasonable jurists would not debate the district court’s dismissal of Mr.

Thompson’s habeas petition as time-barred. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). It is therefore unnecessary to consider whether Mr. Thompson made a

substantial showing of the denial of a constitutional right. Id. at 485.

      We DENY Mr. Thompson’s request for a COA, DENY his request to proceed

in forma pauperis, and DISMISS the appeal. All pending motions are DENIED.



                                         ENTERED FOR THE COURT



                                         Paul J. Kelly
                                         Circuit Judge




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