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

                             FOR THE TENTH CIRCUIT                            October 22, 2019
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 LAWRENCE WASHINGTON,

       Petitioner - Appellant,                                No. 19-6090
                                                       (D.C. No. 5:18-CV-01255-D)
 v.                                                         (W.D. Oklahoma)

 JANET DOWLING,

       Respondent - Appellee.
                      _________________________________

                              ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *
                       _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________


       Petitioner Lawrence Washington, a prisoner in Oklahoma state custody proceeding

pro se,1 seeks a Certificate of Appealability (“COA”) to challenge the district court’s

dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. Washington

also moves to proceed in forma pauperis. We deny Mr. Washington’s motion to proceed

in forma pauperis, decline to grant a COA, and dismiss the appeal.


       *
        This order is not binding precedent, except under the doctrines of law of the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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit
Rule 32.1.
       1
         Because Mr. Washington is proceeding pro se, “we liberally construe his
filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013).
                                      BACKGROUND

      On May 15, 2017, Mr. Washington pleaded guilty to aggravated trafficking in

illegal drugs, operating a vehicle with the license plate covered, conspiracy to

distribute a controlled dangerous substance, manufacturing/attempting to

manufacture a controlled dangerous substance, and maintaining a place where a

controlled dangerous substance is kept. He was sentenced to a term of imprisonment

of 28 years.

      Nearly ten months after his sentencing, Mr. Washington sought leave to file an

appeal out of time in Oklahoma state court. That motion was denied, which denial

was subsequently affirmed by the Oklahoma Court of Criminal Appeals. On

December 21, 2018,2 Mr. Washington filed the instant habeas petition in federal

court. On May 22, 2019, the district court dismissed his petition with prejudice as

time-barred and declined to issue him a COA.




      2
         Although Mr. Washington’s petition was received and docketed by the
district court on December 26, 2018, he complied with the prison mailbox rule by
attesting that on December 21, 2018, he deposited his petition into the prison mail
system with prepaid postage. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir.
2005) (“[A]n inmate must establish timely filing under the mailbox rule by . . . timely
use of the prison’s regular mail system in combination with a notarized statement or a
declaration under penalty of perjury of the date on which the documents were given
to prison authorities and attesting that postage was prepaid.”). Thus, Mr.
Washington’s petition is deemed filed as of December 21, 2018.
                                           2
                                           ANALYSIS

                                 A. Certificate of Appealability

       Absent a COA, we are without jurisdiction to review a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Under 28 U.S.C.

§ 2253(c)(2), “[a] certificate of appealability may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.” When, as here, a

district court has denied a § 2254 petition on procedural grounds without reaching the

petition’s merits, a certificate of appealability will issue only if the petitioner

demonstrates “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) (emphasis added). “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. If the appellant’s showing is deficient as to the procedural bar, a court should

ordinarily deny the COA on those grounds without reaching the constitutional issue.

Id. at 485.

       The district court denied Mr. Washington’s habeas petition as time-barred

under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). As

explained below, our review of governing law demonstrates that reasonable jurists

could not debate the propriety of that disposition.

                                             3
1.     AEDPA’s Limitations Period

       Under 28 U.S.C. § 2244(d)(1)(A), Mr. Washington had to commence his

federal habeas proceedings within one year of the date on which his state court

judgment “became final by the conclusion of direct review or the expiration of the

time for seeking such review.” Mr. Washington’s conviction became final when he

declined to withdraw his guilty plea within the 10-day period as required before the

Oklahoma Court of Criminal Appeals will entertain a direct appeal from a guilty

plea. See Okla. Crim. App. R. 4.2(A) (“In all cases, to appeal from any conviction on

a plea of guilty . . . the defendant must have filed in the trial court clerk’s office an

application to withdraw the plea within ten (10) days from the date of the

pronouncement of the Judgment and Sentence . . . .”). Mr. Washington’s conviction

became final on May 25, 2017, ten days after his guilty plea was accepted and his

sentence imposed, and he was accordingly required to have filed his § 2254 petition

no later than May 29, 2018.3 In sum, absent tolling, his petition filed on

December 21, 2018, was untimely.

2.     Statutory Tolling

       Under 28 U.S.C. § 2244(d)(2), AEDPA’s one-year statute of limitations is

tolled during the pendency of state post-conviction proceedings. Mr. Washington

tolled the limitations period when, on March 19, 2018, he filed a motion for appeal



       3
        May 26, 2018, the conclusion of the one-year period, fell on a Saturday, and
Monday, May 28, 2018, was a holiday. Thus, Mr. Washington’s petition was required
to have been filed no later than May 29, 2018. See Fed. R. Civ. P. 6(a)(1)(C).
                                             4
out of time and for leave to withdraw his guilty plea out of time—a post-conviction

proceeding under Oklahoma law. See Okla. Crim. App. R. 2.1(E)(1) (“If petitioner

seeks an appeal out of time, the proper procedure is to file an Application for Post-

Conviction Relief requesting an appeal out of time.”). On May 9, 2018, the state

court denied Mr. Washington’s motion to appeal out of time because he did not carry

his burden to show that he failed to initiate direct review through no fault of his own.

      Mr. Washington appealed that denial to the Oklahoma Court of Criminal

Appeals, which affirmed the lower court on August 8, 2018. Having exhausted his

state post-conviction appeals, AEDPA’s limitations period resumed running on

August 9, 2018.

      When Mr. Washington filed his motion for leave to withdraw his guilty plea

out of time, 298 days had elapsed since his conviction became final. To evade the

time bar, then, Mr. Washington needed to have filed his habeas petition within 67

days of August 9, 2018—no later than October 15, 2018. Thus, unless he can avail

himself of equitable tolling, his December 21, 2018, petition is untimely.

3.    Equitable Tolling

      AEDPA’s limitations period may be equitably tolled only upon a showing that

(1) the petitioner has been pursuing his rights diligently; and (2) some extraordinary

circumstance stood in his way of filing a timely petition. Holland v. Florida, 560

U.S. 631, 649 (2010).

      Mr. Washington appears to argue that he is entitled to equitable tolling because

his trial attorney abandoned him during the 10-day period during which he could

                                           5
have directly appealed from his conviction. Mr. Washington has not made sufficient

factual allegations to support his abandonment argument.4 But even assuming he was

abandoned by his trial counsel during the 10-day window—and that, as a result,

AEDPA’s one-year limitations period began to run—these circumstances do nothing

to demonstrate that, during the following 365-day period, he pursued his rights

diligently but some extraordinary circumstance prevented him from filing a timely

habeas petition.5

       In short, because tolling does not render Mr. Washington’s petition timely,

reasonable jurists could not debate the district court’s dismissal of Mr. Washington’s

petition as time-barred. Accordingly, we deny Mr. Washington’s application for a

COA.



       4
        We note that in denying Mr. Washington’s motion for leave to withdraw his
guilty plea out of time, the state court represented that at his sentencing:

       [A]fter Defendant was advised by the Judge of his right to withdraw his
       guilty plea by filing a written application within ten (10) days, the Judge
       also asked whether the Defendant wished to remain in the Comanche
       County Detention Center to allow him time to think about filing such an
       application, but the Defendant responded by indicating he wished to waive
       that option and be transported to the Oklahoma Department of Corrections
       as soon as possible.

ROA at 51.
       5
       Nor does Mr. Washington assert that he is actually innocent, which we have
held may entitle a habeas petitioner to equitable tolling. See Laurson v. Leyba, 507
F.3d 1230, 1232–33 (10th Cir. 2007). The grounds for habeas urged by Mr.
Washington sound in legal, rather than factual, innocence. See id. at 1233 (“Actual
innocence means ‘factual innocence.’” (quoting Bousley v. United States, 523 U.S.
614, 623 (1998))).
                                            6
                         B. Motion to Proceed in Forma Pauperis

      Mr. Washington filed a motion to proceed in forma pauperis on appeal. “In

order to succeed on his motion, an appellant must show a financial inability to pay

the required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991). Mr. Washington has not met this burden; our

review of the record reveals no non-frivolous argument in support of his appeal.

Accordingly, we also deny Mr. Washington’s motion to proceed in forma pauperis on

appeal.

                                      CONCLUSION

      Because Mr. Washington fails to establish that reasonable jurists could debate

whether his habeas petition is time-barred, we DENY his request for a COA and

DISMISS the appeal. We also DENY Mr. Washington’s motion to proceed in forma

pauperis on appeal.

                                           Entered for the Court



                                           Carolyn B. McHugh
                                           Circuit Judge




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