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

                                   TENTH CIRCUIT                              March 22, 2013

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
TYRONE L. JOHNSON,

              Petitioner - Appellant,
v.                                                           No. 13-5005
                                                (D.C. No. 4:12-CV-00331-GKF-TLW)
CHAD MILLER, Warden,                                         (N.D. Okla.)

              Respondent - Appellee.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY
                           AND DISMISSING APPEAL


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


       Tyrone Johnson, an Oklahoma state prisoner proceeding pro se1 and in forma

pauperis, wants to appeal from the denial of his 28 U.S.C. § 2254 habeas petition which

was dismissed as time-barred. The district court denied a requested certificate of

appealability (COA). Because Johnson has not “made a substantial showing of the denial

of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we also deny his renewed request

for a COA.




       1
        We liberally construe Johnson’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       Johnson was convicted in 1993 on four counts of first-degree murder and

sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals (OCCA)

affirmed his conviction on September 7, 1995. On November 10, 1997, he filed a

petition for post-conviction relief in state court. The trial court denied the petition and

the OCCA affirmed on February 10, 1998. On February 8, 1999, Johnson filed a § 2254

petition in federal court which he voluntarily dismissed a month later. Thirteen years

later, on February 13, 2012, he filed a petition for post-conviction relief with the OCCA,

which declined jurisdiction. He filed the present § 2254 petition on June 11, 2012.

       Not surprisingly, the district court found the petition time-barred. It concluded

Johnson’s conviction became final on December 6, 1995, the date the ninety-day time

period during which he could have, but did not file a petition for a writ of certiorari with

the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th

Cir. 2001) (holding “a petitioner’s conviction is not final and the one-year limitation

period for filing a federal habeas petition does not begin to run until--following a decision

by the state court of last resort--after the United States Supreme Court has denied review,

or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with

the Supreme Court has passed”) (quotation marks omitted). Because his conviction

became final prior to the effective date of the Antiterrorism and Effective Death Penalty

Act (AEDPA), April 24, 1996, Johnson had until April 24, 1997, in which to file his

federal habeas petition. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). He

did not file before the critical date. The district court concluded Johnson’s state petitions




                                               -2-
for post-conviction relief did not toll the limitations period under 28 U.S.C. § 2244(d)(2)

because they were not filed until after the limitations period had expired. Id. at 1142-43.

       The court also concluded Johnson was not entitled to equitable tolling. Relevant

here, it determined he had not substantiated his factual innocence claim and his alleged

mental retardation did not equitably toll the limitations period because even if it

constituted an extraordinary circumstance he had not shown diligence. See Woodward v.

Cline, 693 F.3d 1289, 1294 (10th Cir.) (stating a petitioner who asserts actual innocence

as grounds for equitable tolling “must establish that, in light of new evidence, it is more

likely than not that no reasonable juror would have found the prisoner guilty beyond a

reasonable doubt”) (quotation marks omitted), cert. denied 133 S. Ct. 669 (2012); Marsh

v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[E]quitable [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.”) (emphasis added).

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Because the district court’s ruling rests on procedural

grounds, Johnson must show both 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).




                                              -3-
       Johnson does not contest the court’s statute of limitations analysis other than to

argue he is entitled to equitable tolling because he is factually innocent and a slow

learner. Because no jurist of reason could reasonably debate the correctness of the

district court’s decision, we DENY the request for a COA and DISMISS this matter.2

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




       2
          In the district court, Johnson made a conclusory reference to an intervening
change in the law entitling him to equitable tolling. He expounds on that claim in his
COA application where he relies on Cooper v. Oklahoma, 517 U.S. 348 (1996). In
Cooper, the Supreme Court struck down Oklahoma’s requirement for defendants to prove
their incompetence by clear and convincing evidence because that standard
impermissibly allowed a defendant to be tried even though it is more likely than not that
he is incompetent. Id. at 350, 369. Cooper does not help him. It was decided in April
1996, prior to the expiration of the limitations period.

                                            -4-
