                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 3, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 ALPHONZO RAY SMALLWOOD,

                 Petitioner-Appellant,                  No. 13-5004
          v.                               (D.C. No. 4:12-CV-00407-GFK-TLW)
 TERRY MARTIN, Warden,                                 (N.D. of Okla.)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON, and TYMKOVICH, Circuit
Judges.


      Alphonzo Smallwood, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253(a), and we construe Smallwood’s filings liberally

because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3

(10th Cir. 1991).

      We conclude the district court correctly disposed of Smallwood’s petition

and therefore deny the application for a COA and dismiss this 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         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 I. Background

      A. Timeline of Relevant Events

      The proper disposition of this case turns on a what-happened-when

analysis. This is particularly helpful in this case given the corruption charges

eventually filed against some of the Tulsa police officers involved in

Smallwood’s prosecution. The relevant facts are therefore best presented in a

timeline:

      Jan. 8, 2007        Smallwood pleads guilty to drug charges and is
                          sentenced to prison by the Tulsa County District
                          Court.

      Jan. 19, 2007       Smallwood’s conviction becomes “final” for
                          purposes of § 2254. See Oklahoma Court of
                          Criminal Appeals (OCCA) Rule 4.2(A) (“to
                          appeal from any conviction on a plea of guilty . . .
                          the defendant must have filed . . . an application
                          to withdraw the plea within ten (10) days from the
                          date of the pronouncement of the Judgment and
                          Sentence”).

      June 14, 2007       Smallwood files a “Motion for Judicial Review
                          and for Sentence Modification” with the Tulsa
                          County District Court. R. at 44.

      June 21, 2007       The Tulsa County District Court denies
                          Smallwood’s motion because he is “not eligible
                          for Judicial Review.” R. at 46.

      Sept. 12, 2007      Smallwood files a second “Motion for Judicial
                          Review and for Sentence Modification” with the
                          Tulsa County District Court. R. at 47. It is not
                          clear when or if the state court ruled on this
                          motion.


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      July 20, 2010      Five Tulsa police officers (including some who
                         were involved in Smallwood’s arrest) are indicted
                         in federal court on corruption charges, including
                         charges of planting drugs.

      June 10, 2011      After a jury trial of three of the Tulsa police
                         officers, a federal jury convicts one and acquits
                         the other two.

      Aug. 25, 2011      After a jury trial of the remaining two police
                         officers, a federal jury convicts one (who had also
                         been involved in Smallwood’s arrest) and acquits
                         the other.

      Nov. 15, 2011      Smallwood files an application for post-conviction
                         relief with the Tulsa County District Court,
                         alleging grounds for relief based in part on the
                         Tulsa police officers’ corruption.

      Mar. 19, 2012      The Tulsa County District Court denies
                         Smallwood’s application for post-conviction
                         relief.

      June 25, 2012      The OCCA affirms the lower court’s denial of
                         Smallwood’s application for post-conviction
                         relief.

      July 23, 2012      Smallwood files for § 2254 relief in federal court.

      B. Smallwood’s § 2254 Petition

      Smallwood’s § 2254 petition asserts five grounds for relief. Ground One

claims the police who arrested him violated his Fourth Amendment rights.

Grounds Two and Three are ineffective-assistance-of-counsel claims based on

Smallwood’s trial counsel’s purported failure to prepare adequately for a

suppression hearing. Grounds Four and Five argue that the police officers who


                                        -3-
arrested him (and were later charged with corruption) violated Brady by not

disclosing their involvement in criminal activity.

      C. The District Court’s Disposition

      The district court did not analyze Smallwood’s grounds for relief

individually. Rather, the court disposed of all grounds on two alternative

arguments.

      First, the district court concluded that Smallwood failed to bring his claims

within the appropriate statute of limitations. Second, to the extent Smallwood

might deserve tolling because he could not have discovered the basis for his

claims (i.e., the Tulsa police officers’ corruption) within the statute of limitations,

the court held that Smallwood still waited too long. The court reasoned that

Smallwood should have known about the police officers’ corruption on or about

the time they were indicted in July 2010. But Smallwood did not file his § 2254

petition until two years later, and therefore not within any reasonable construction

of the one-year limitations period.

                                      II. Analysis

      For somewhat different reasons than those articulated by the district court,

we believe it reached the correct outcome. We therefore deny a COA.

      A. AEDPA’s Statute of Limitations

      According to the Antiterrorism and Effective Death Penalty Act (AEDPA),

a one-year statute of limitations applies to habeas petitions filed by state

                                          -4-
prisoners. 28 U.S.C. § 2244(d)(1). As relevant to this case, that statute of

limitations begins to run from the later of “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such review” or “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due

diligence.” Id. § 2244(d)(1)(A) & (D). In addition, the limitations period is

tolled for as long as “a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is

pending.” Id. § 2244(d)(2).

      B. Smallwood’s First, Second, and Third Grounds for Relief

      Smallwood’s first, second, and third grounds for relief claim Fourth

Amendment violations 1 and ineffective assistance of counsel with respect to a

suppression hearing. These grounds have nothing to do with the subsequent

indictment and conviction of certain Tulsa police officers. Therefore, in seeking

to satisfy the statute of limitations as to these three grounds, Smallwood gains no

advantage from AEDPA’s extension until “the date on which the factual predicate

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

of due diligence.” Id. § 2244(d)(1)(D). Smallwood knew all the facts relevant to


      1
        If Smallwood had a full and fair opportunity to litigate his Fourth
Amendment claim in the trial court, he would be barred from raising it in a
habeas context. Stone v. Powell, 428 U.S. 465, 496 (1976). But the record before
us does not suffice to determine whether he had a full and fair opportunity.

                                         -5-
these claims when or before he pleaded guilty. Thus, he had one year from “the

date on which the judgment became final” as modified by any time in which he

had a “properly filed application for State post-conviction or other collateral

review” pending. Id. § 2244(d)(1)(A) & (d)(2).

      Smallwood pleaded guilty and was sentenced on January 8, 2007. If he

wished to appeal notwithstanding his guilty plea, Oklahoma law required him to

file an application to withdraw his guilty plea within ten days—i.e., by January

18, 2007. See OCCA Rule 4.2(A). He did not do so. For AEDPA purposes, his

conviction therefore became final on January 19, 2007, requiring him to file a

§ 2254 petition by January 19, 2008 unless a tolling event intervened.

      Within that year, Smallwood filed two motions styled “motion for judicial

review and sentence modification.” Neither one of these petitions was brought

under Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. Ann., tit. 22,

§§ 1080–89. Rather, the first motion—which comprises only a request for relief,

with no supporting allegations—was brought under an Oklahoma statute that

provides for judicial review of “prison disciplinary proceedings that result in the

revocation of earned credits.” Okla Stat. Ann., tit. 57, § 564.1(A). This first

motion would therefore not qualify as a “properly filed application for State

post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2).

      The second motion was brought under Okla Stat. Ann., tit. 22, § 982a,

which permits the trial court to modify a prisoner’s sentence within two years of

                                         -6-
judgment, even if the court would normally lack jurisdiction because of a pending

appeal. See Dowdy v. Caswell, 43 P.3d 412, 413–14 (Okla. Crim. App. 2002).

There is no indication that this is a collateral review mechanism, and

Smallwood’s general argument under it is that he had behaved well in prison so

far. But Smallwood also asserted that his sentence is excessive, followed

somewhat incongruently by the assertion, “Wherefore there is a claim of

ineffective assistance of counsel.” R. at 47. Smallwood also argued that he

would have never pleaded guilty had he “known the seriousness of the crime he

was being charged with.” Id.

      Assuming for the sake of argument that either motion was intended as a

petition for collateral review, the question then is whether they would qualify as

“properly filed” under Oklahoma law. “[A] ‘properly filed’ application [for

purposes of § 2244(d)(2)] is one filed according to the filing requirements for a

motion for state post-conviction relief.” Habteselassie v. Novak, 209 F.3d 1208,

1210 (10th Cir. 2000). The requirements can include “conditions precedent that

the state may impose upon the filing of a post-conviction motion.” Id. at 1211.

      In Oklahoma, such conditions precedent include the need to raise an

argument on direct appeal before asserting it on collateral review. See Pickens v.

State, 910 P.2d 1063, 1067 (Okla. Crim. App. 1996) (“this Court does not

consider . . . an issue which could have been raised on direct appeal but which

was not (and is therefore waived)”); Jones v. State, 704 P.2d 1138, 1140 (Okla.

                                         -7-
Crim. App. 1985) (“if an issue is bypassed on direct appeal, it may not be asserted

on application for post-conviction relief”). Accordingly, Smallwood’s petitions

were not “properly filed” because he never attempted to withdraw his guilty plea

and then appeal directly (assuming the trial court denied the motion to

withdraw). 2

      Because Smallwood never “properly filed” a post-conviction application

within one year from his conviction, he did not satisfy AEDPA’s one-year

limitations period with respect to his first, second, and third grounds for relief. 3

      C. Smallwood’s Fourth and Fifth Grounds for Relief

      Smallwood bases his fourth and fifth grounds for relief in the revelation

that certain Tulsa officers (including some involved in Smallwood’s arrest) had

been involved in a corrupt scheme that included planting drugs on suspects. This

information, Smallwood argues, resets the one-year clock. See 28 U.S.C.

§ 2244(d)(1)(D).



      2
        Oklahoma does not necessarily postpone ineffective-assistance-of-counsel
claims to the post-conviction stage. Rather, if the facts leading to the claim were
available to a direct appeal attorney, the ineffective-assistance claim must be
brought on direct appeal or it is forfeited. Hooker v. State, 934 P.2d 352, 354
(Okla. Crim. App. 1997). Smallwood’s papers make clear that the facts
underlying his dissatisfaction with his trial counsel were known to him at the time
he pleaded guilty.
      3
         Smallwood’s post-conviction applications filed in 2011 do not reset the
clock. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state
petitions for post-conviction relief filed within the one year allowed by AEDPA
will toll the statute of limitations.”).

                                          -8-
         If police officers had planted drugs on Smallwood, he would have the basis

for stating a due process violation. Napue v. Illinois, 360 U.S. 264, 269 (1959)

(“a conviction obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth Amendment”).

Presumably Smallwood would have known at the time that officers had planted

drugs on him, raising the question of whether he was required to object on that

account in the trial court to preserve this issue for later review. But we need not

resolve that issue here because Smallwood does not allege that Tulsa officers

planted drugs on him. Instead, Smallwood attempts to connect the officers’

corrupt behavior to himself through the following cryptic assertion:

               In Mr. Smallwood’s case the consent to search was not
               voluntary and there were irregularities with the amount
               of drugs allegedly recovered. It was reported he
               [Smallwood?] tossed one cocaine rock baggie prior to
               his arrest. By the time of the plea the claim was that in
               excess of 5.81 grams was recovered.

R. at 10 (Ground Four); see also id. at 12 (repeating same assertion under Ground

Five).

         The problem with these assertions is that Smallwood fails to deny having

tossed a baggy of cocaine or the amount of cocaine. He simply proclaims

“irregularities” and leaves the court to make the connection. While we construe

pro se pleadings liberally, our liberality can only stretch so far. As one court said

in a Rule 12(b)(6) context, “when a complaint omits facts that, if they existed,


                                           -9-
would clearly dominate the case, it seems fair to assume that those facts do not

exist.” O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976). The same

holds true for habeas relief. We therefore do not see the revelation of corruption

among certain Tulsa police officers as creating a new factual predicate for a due

process claim, thus potentially extending § 2244’s one-year limitations period.

      Perhaps recognizing this, Smallwood actually frames Grounds Four and

Five not as general due process violations, but specifically as Brady violations.

In particular, because knowledge of the officers’ corruption would have been both

favorable and material to his defense, Smallwood concludes that the officers had

a Brady obligation to disclose their own corruption before testifying at a

suppression hearing. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (obligating

state to disclose evidence “favorable to an accused . . . where the evidence is

material either to guilt or to punishment”); see also Youngblood v. West Virginia,

547 U.S. 867, 869–70 (2006) (confirming that Brady reaches evidence known to

the police but not the prosecutor).

      Smallwood cites no authority for this novel interpretation of Brady, nor

could we locate any. On this record, we decline to adopt a rule that might require

courts to reopen every case in which a corrupt officer testified regardless of

whether the corruption extended to that case.

      Because this is not a Brady claim based on information discovered post-

verdict, § 2244(d)(1)(D) does not apply, and we perceive no other basis in

                                         -10-
§ 2244(d) to extend the statute of limitations for Grounds Four and Five.

Accordingly, like Smallwood’s first three grounds, his last two are barred by

AEDPA’s one-year statute of limitations.

                                III. Conclusion

      For the foregoing reasons, we DENY the application for a COA and

DISMISS the appeal.

                                      ENTERED FOR THE COURT

                                      Timothy M. Tymkovich
                                      Circuit Judge




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