                                                                                   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
 SHAWN MURRELL,

       Petitioner - Appellant,

 v.                                                           No. 19-5051
                                                  (D.C. No. 4:18-CV-00341-JHP-FHM)
 SCOTT CROW,                                                  (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Oklahoma state prisoner Shawn Murrell sought relief under 28 U.S.C. § 2254.

The district court dismissed Murrell’s petition, concluding it was time-barred under

28 U.S.C. § 2244(d)(1). Proceeding pro se, Murrell now seeks a certificate of

appealability (COA) so he can appeal the district court’s order.1 See 28 U.S.C.

§ 2253(c)(1)(A). For the reasons discussed below, we deny Murrell’s COA request

and dismiss this matter.




      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         We liberally construe Murrell’s pro se filings. But we will not act as his
advocate by, e.g., formulating possible arguments or combing the record for support.
See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
                                      Background

       In August 2014, Murrell pleaded guilty in Oklahoma state court to one count

each of assault and battery with a dangerous weapon and using a vehicle to facilitate

the discharge of a weapon. On October 13, 2014, the state trial court imposed a

twenty-year prison sentence. Murrell did not immediately move to withdraw his plea

or otherwise seek to appeal his conviction or sentence. But on May 21, 2015, he filed

an application for postconviction relief in state district court, asserting that (1) he was

entitled to an out-of-time direct appeal; (2) he received ineffective assistance of

counsel (IAC) during his plea proceedings; and (3) the state trial court lacked

subject-matter jurisdiction to accept his plea.

       The state district court denied Murrell’s first application for postconviction

relief on September 26, 2016 and recommended denying Murrell’s request for an out-

of-time direct appeal on that same date. Again, Murrell did not appeal. Instead, on

October 5, 2016, he asked the state district court to review or modify his sentence.

See Okla. Stat. Ann. tit. 22, § 982a. The state district court denied Murrell’s request

on November 2, 2016.

       Murrell then filed a second application for state postconviction relief on May

4, 2017, this time seeking leave to appeal out-of-time the state district court’s

September 26, 2016 order denying his first application for postconviction relief. The

state district court recommended granting Murrell’s request, and the Oklahoma Court

of Criminal Appeals (OCCA) accepted that recommendation on July 28, 2017. The

OCCA then reviewed the state district court’s September 26, 2016 order denying

                                            2
Murrell’s first motion for postconviction relief, concluded that Murrell failed to

demonstrate he was entitled to an out-of-time direct appeal, and affirmed the state

district court’s September 26, 2016 order on November 21, 2017.

       After his efforts to obtain postconviction relief in state court proved

unsuccessful, Murrell filed the underlying § 2254 petition in federal district court on

June 29, 2018. He asserted that (1) he was “denied a direct appeal through no fault of

[his] own due to the ineffectiveness of trial counsel”; (2) counsel was likewise

ineffective during the plea proceedings; and (3) the state trial court lacked subject-

matter jurisdiction to accept his guilty plea. R. vol. 1, 9. The state moved to dismiss

Murrell’s § 2254 petition, arguing it was time-barred. See § 2244(d)(1) (“A 1-year

period of limitation shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court.”).

       The district court agreed with the state. Specifically, the court ruled that

(1) Murrell’s convictions became final on October 23, 2014; (2) the one-year

limitation period therefore began to run the next day, on October 24, 2014; (3) 209

days elapsed before Murrell filed his first application for state postconviction relief

on May 21, 2015; (4) Murrell was entitled to statutory tolling for the period between

May 21, 2015, and October 29, 2016—the day after the time for appealing the state

district court’s order denying his first application for state postconviction relief

expired, see § 2244(d)(2) (providing that time during which certain motions are




                                            3
pending does not count toward one-year period);2 (5) as of October 29, 2016, Murrell

had 156 days remaining—until April 3, 2017—in which to file a timely § 2254

petition;3 and therefore (6) Murrell’s June 28, 2018 petition was untimely.

       The district court then addressed and rejected each of Murrell’s four arguments

for “excus[ing] the untimeliness of his petition.” R. vol. 1, 141. First, the court ruled

that § 2244(d)(1) contains no exception for “habeas claim[s] based on a trial court’s

alleged lack of subject[-]matter jurisdiction.” Id. at 142 (quoting Lockett v. Rudek,

No. CIV-11-184-R, 2011 WL 2634216, at *2 (W.D. Okla. June 14, 2011)). Second,

the court ruled that § 2244(d)(1) does not violate the Suspension Clause of the United

States Constitution. Third, it concluded that § 2244(d)(1) applied to Murrell’s § 2254

petition because—although § 2244(d) is part of the Antiterrorism and Effective Death

Penalty Act (AEDPA) of 1996, and although Murrell was neither convicted of

terrorism nor sentenced to death—the plain language of § 2244(d) states that it

applies to “an application for a writ of habeas corpus [filed] by a person in custody

pursuant to the judgment of a [s]tate court.” § 2244(d)(1). Fourth, it ruled that

Murrell was not entitled to equitable tolling because “he fail[ed] to describe any



       2
          In reaching this conclusion, the federal district court assumed that Murrell’s
October 5, 2016 motion for judicial review of his sentence constituted a motion for
“collateral review” but ruled that the motion nevertheless did not toll the one-year
clock because it was not “properly filed.” § 2244(d)(2) (“The time during which a
properly filed application for . . . collateral review . . . is pending shall not be counted
toward any period of limitation under this subsection.”).
        3
          Because Murrell did not file his second application for state postconviction
relief until after the April 3, 2017 deadline had already expired, the district court
ruled “this application also had no tolling effect.” R. vol. 1, 141.
                                             4
extraordinary circumstances that prevented him from filing a petition before his April

3, 2017 deadline.” R. vol. 1, 143. Accordingly, the district court granted the state’s

motion to dismiss Murrell’s petition as time-barred.

                                         Analysis

       Murrell now seeks a COA from this court so he can appeal the district court’s

order. See § 2253(c)(1)(A). We will grant his COA request only if he can make “a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make the

requisite showing here, Murrell must demonstrate, among other things, that

reasonable jurists could debate “whether the district court was correct” in ruling that

Murrell’s petition is time-barred. Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

(setting forth standard that applies to COA request when district court denies petition

on procedural grounds, “without reaching [petitioner’s] underlying constitutional

claim[s]”).

       In asserting he can satisfy this standard, Murrell advances four arguments.

First, he insists that because a litigant can generally challenge a court’s subject-

matter jurisdiction at any time, § 2244(d)(1) does not apply to his claim that the trial

court lacked jurisdiction to accept his plea. In support, he notes that “habeas corpus

relief is available in a criminal prosecution if it be found that the trial court had no

jurisdiction to try the petitioner.” Aplt. Br. 4 (citing Bowen v. Johnston, 306 U.S. 19,

24 (1939)). We do not disagree. See Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921,

924 (10th Cir. 2008) (“Absence of jurisdiction in the convicting court is indeed a

basis for federal habeas corpus relief cognizable under the due process clause.”). But

                                             5
“[a]s with any other habeas claim,” Murrell’s due-process claim “is subject to

dismissal for untimeliness.” Morales v. Jones, 417 F. App’x 746, 749 (10th Cir.

2011) (unpublished). Further, the Supreme Court has expressly held that when a

district court denies habeas relief on procedural grounds, we may “dispose of” the

petitioner’s subsequent COA request without considering the merits of his or her

underlying constitutional claims. Slack, 529 U.S. at 485. Thus, we see no indication

that the jurisdictional nature of Murrell’s due-process claim should guide our COA

inquiry here. Accordingly, we deny his request for a COA on this issue.

      Second, Murrell argues the district court erred in relying on our nonbinding

decision in Long v. Miller, 541 F. App’x 800, 802 (10th Cir. 2013) (unpublished), to

reject his assertion that applying § 2244(d)(1) violates the Suspension Clause. More

specifically, he distinguishes between first and original habeas petitions such as his

and second or successive habeas petitions. And he insists that although the latter

“may be time-barred under [AEDPA],” the former may not.

      Although we have recognized that “[t]here may be circumstances where the

limitation period at least raises serious constitutional questions and possibly renders

the habeas remedy inadequate and ineffective,” we have declined to adopt the bright-

line rule Murrell advocates for here. Miller v. Marr, 141 F.3d 976, 977–78 (10th Cir.

1998) (rejecting petitioner’s argument that “one-year limitation on filing a first

habeas petition violated the Suspension Clause” because petitioner failed to

“demonstrate inadequacy and ineffectiveness” of habeas remedy under circumstances

of particular case (emphasis added)). And because Murrell makes no effort to show

                                           6
how the district court “render[ed] the habeas remedy inadequate and ineffective” by

applying § 2244(d)(1) to the particular “circumstances” of his case, he fails to show

reasonable jurists could debate the district court’s ruling rejecting his Suspension

Clause argument. Id. at 978.

      Third, Murrell asserts that because he is not a terrorist and has not been

sentenced to death, AEDPA’s one-year time limit does not apply to his petition. But

as the district court pointed out, this argument overlooks the plain language of

§ 2244(d), which applies to “an application for a writ of habeas corpus [filed] by a

person in custody pursuant to the judgment of a [s]tate court.” § 2244(d)(1).

Accordingly, we decline to grant a COA on this issue.

      Fourth, Murrell argues he is entitled to equitable tolling because he diligently

pursued his claims and “extraordinary circumstances . . . prevented him from filing.”

Aplt. Br. 9. But the only allegedly extraordinary circumstance he identifies is his lack

of access to legal assistance in the form of a “trained or experienced law clerk[],” an

“inmate ‘legal assistant,’” or an attorney. Id. And “neither a plaintiff’s unfamiliarity

with the legal process nor . . . lack of representation during the applicable filing

period merits equitable tolling.” Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.

1999); see also, e.g., United States v. Galindo, 406 F. App’x 322, 324 (10th Cir.

2011) (unpublished) (rejecting petitioner’s argument that lack of access to “Spanish-

speaking law clerk” entitled him to equitable tolling). Thus, we deny Murrell’s

request for a COA on this issue.



                                            7
                                     Conclusion

      Because Murrell fails to demonstrate reasonable jurists could debate the

correctness of the district court’s procedural ruling, we deny his COA request and

dismiss this matter.




                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                          8
