                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 20, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT


 JERRY LLOYD SEWARD,

               Petitioner - Appellant,              Nos. 07-6145, 07-6171
       v.                                             (W.D. Oklahoma)
 GREG PROVINCE, Warden; THE                            (CIV-07-246-F)
 ATTORNEY GENERAL OF
 OKLAHOMA,

               Respondents - Appellees.


                                         ORDER


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.



      Proceeding pro se, state prisoner Jerry Seward has filed an application for a

certificate of appealability (COA), seeking to appeal the district court’s dismissal

of his petition for writ of habeas corpus under 28 U.S.C. § 2254. Because Mr.

Seward has failed to make “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we deny his application for a COA and dismiss

this matter.
                                  I. BACKGROUND

      On June 25, 2003, an Oklahoma court sentenced Mr. Seward to forty years’

imprisonment, the final twenty years of which were suspended, after Mr. Seward

pleaded guilty to Rape in the First Degree of a Minor Under the Age of Fourteen.

On April 25, 2005, Mr. Seward filed an application for post-conviction relief in

state court, claiming that his counsel had been ineffective and that newly

discovered evidence supported a claim of actual innocence. The trial court denied

Mr. Seward’s application, and the Oklahoma Court of Criminal Appeals (OCCA)

affirmed. Mr. Seward filed a second application for state post-conviction relief.

The trial court again denied relief, and the OCCA affirmed in an unpublished

order. Rec. doc. V, at 2 (Order Affirming Denial of Subsequent Application for

Post-Conviction Relief, No. PC-2006-1131) (citing Fowler v. State, 896 P.2d 566,

569 (Okla. Crim App. 1995) (“The Post-Conviction Procedure Act is not intended

to provide a second appeal.”)).

      On February 27, 2007, Mr. Seward filed a petition for writ of habeas corpus

in federal district court pursuant to 28 U.S.C. § 2254. Mr. Seward’s petition

challenged the adequacy of the state’s post-conviction proceedings and alleged

that his state court trial counsel was ineffective. The district court dismissed the

petition, finding that Mr. Seward’s challenges to the state’s post-conviction

processes failed to state a federal constitutional claim and that his ineffective

assistance of counsel claims were barred as untimely.

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      Mr. Seward filed a Notice of Intent to Appeal the district court’s decision.

The district court construed Mr. Seward's Notice of Intent to Appeal as an

application for a COA and denied the application. Mr. Seward has filed an appeal

from the district court’s denial of his petition on the merits (No. 07-6145), and

also requests a COA. Additionally, he has filed a separate brief in an attempt to

appeal from the district court’s denial of his application for a COA (No. 07-6171).

Under 28 U.S.C. § 2253, Mr. Seward must obtain a COA before challenging the

district court’s dismissal of his petition. Thus, we treat Mr. Seward’s filings as a

single application for a COA.


                                 II. DISCUSSION

      Mr. Seward’s briefs before this court do not raise claims relating to the

adequacy of Oklahoma’s post-conviction processes. Before this panel, Mr.

Seward seeks a COA only to raise his ineffective assistance of counsel claims.

Thus, we now consider solely whether Mr. Seward should be granted a COA for

his ineffective assistance of counsel claims.

       A COA is a jurisdictional prerequisite to this Court’s review of Mr.

Seward’s petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). We will issue a COA only if Mr. Seward makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make this showing, Mr. Seward must demonstrate that the issues raised are


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debatable among jurists, that a court could resolve the issues differently, or that

the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 484

(2000). Because the district court dismissed Mr. Seward’s petition on procedural

grounds, Mr. Seward must show that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

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

in its procedural ruling.” Id.

      In this case, the district court properly found that Mr. Seward’s claims were

time barred. The Antiterrorism and Effective Death Penalty Act establishes a

one-year limitations period for the filing of habeas petitions by prisoners in state

custody. The limitations period begins on the latest of the following: (1) the date

on which a state court judgment becomes final; (2) the date of the removal of an

unconstitutional state-created impediment; (3) the date on which a right is newly

recognized by the Supreme Court; or (4) the date on which the factual predicate

of claims could have been discovered through due diligence. See 28 U.S.C. §

2244(d)(1)(A)-(D).

      On June 25, 2003, the Oklahoma district court sentenced Mr. Seward and

entered a judgment in his case. Mr. Seward did not move to withdraw his guilty

plea, file a direct appeal, or seek a writ of certiorari to the Supreme Court of the

United States. As a result, the judgment in Mr. Seward’s case became final ten

days later, on July 5, 2003. See O KLA . S TAT . tit. 22, § 18; Rule 4.2, Rules of the

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Oklahoma Court of Criminal Appeals. Thus, Mr. Seward’s limitations period

expired on July 5, 2004, and his February 27, 2007, filing of a habeas petition

was untimely under § 2244(d)(1)(A).

        Mr. Seward’s petition was also untimely under § 2244(d)(1)(D), which

allows a prisoner to file a petition for a writ of habeas corpus within one year of

the discovery of evidence establishing innocence. See § 2244(d)(1)(D). Under

this provision, Mr. Seward’s claim that newly discovered evidence established his

innocence had to be filed within one year of “the date on which the factual

predicate of the claim or claims presented could have been discovered through the

exercise of due diligence.” Easterwood v. Champion, 213 F.3d 1321, 1323 (10th

Cir. 2000) (quoting 28 U.S.C. § 2244(d)(1)(D)). Here, Mr. Seward’s evidence

was an Oklahoma State Bureau of Investigation (OSBI) report filed on April 9,

2003 that noted that no DNA comparisons were performed in Mr. Seward’s case.

Mr. Seward received a copy of the report in September 2004. We will assume

that Mr. Seward discovered the evidence on September 30, 2004, meaning that,

under § 2244(d)(1)(D), his limitations period would expire on September 30,

2005.

        However, “the time during which a properly filed application for State

post-conviction review or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of

limitation,” 28 U.S.C. § 2244(d)(2). In this case, Mr. Seward filed a petition for

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post-conviction relief in Oklahoma district court on April 26, 2005, which the

district court denied and which the OCCA later denied in an order dated July 22,

2005. The one-year limitations period was extended 87 days while state post-

conviction relief was pending, thus extending the one year filing period to

December 26, 2005.

      Mr. Seward did not file his petition in federal court before December 2005.

Rather, on June 16, 2006, Mr. Seward filed a new state court action seeking post

conviction relief. Only after receiving an unfavorable ruling from the OCCA in

his second state court action on January 26, 2007, did Mr. Seward seek habeas

relief in federal district court on February 27, 2007. Mr. Seward’s June 16, 2006,

application for state post-conviction relief was filed after the one-year period had

expired, and thus did not toll the limitations period. See Fisher v. Gibson, 262

F.3d 1135, 1142-43 (10th Cir. 2001) (holding that a collateral petition filed in

state court after AEDPA’s limitations period has expired does not serve to toll

AEDPA’s limitations period). Mr. Seward’s February 27, 2007, filing in federal

court was therefore untimely.

      Having determined that Mr. Seward’s ineffective assistance of counsel

claims are time-barred under § 2244, we consider whether he may be entitled to

equitable tolling. Mr. Seward disputes the district’s court’s decision not to apply

the equitable tolling doctrine to his untimely claims. He advances two theories.

First, Mr. Seward contends that equitable tolling was appropriate because state

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actors, who are not identified in Mr. Seward’s briefs, impeded his access to

important records and state and federal courts. Second, Mr. Seward argues that

actual innocence claims – he characterizes his petition as such – are categorically

exempt from § 2244’s limitations period.

      We agree with the recommendation of the magistrate judge, which the

district court adopted in this case. Under “rare and exceptional circumstances,”

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000), § 2244’s limitations

period may be subject to equitable tolling if application of the rule would render

the habeas remedy “inadequate and ineffective.” Miller v. Marr, 141 F.3d 976,

978 (10th Cir. 1998). Equitable tolling is appropriate only when a petitioner

“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. Seward has failed to meet this burden. While Mr. Seward contends

that the state impeded his ability to research his access to records, he puts forward

no evidence of an impediment. Further, Mr. Seward’s assertion that claims of

actual innocence are categorically entitled to equitable tolling is without merit. In

any event, Mr. Seward’s briefs fail to lay out a factual basis for his innocence

claim. Thus, Mr. Seward has not shown that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

                                          -7-
was correct in its procedural ruling.” Slack, 529 U.S. at 484.

                                III. CONCLUSION

      For reasons provided above, we DENY Mr. Seward’s request for a COA

and DISMISS this matter.



                                Entered for the Court,




                                ELISABETH A. SHUMAKER, Clerk




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