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

                                TENTH CIRCUIT                            December 12, 2014
                       ___________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
DOYLE M. SANDERS,

      Petitioner-Appellant,                                  No. 14-7084

v.                                                (D.C. No. 13-CV-498-JHP-KEW)
                                                            (E.D. Okla.)
JANET DOWLING, Warden,

      Respondent-Appellee.
                   ____________________________________
        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                       DISMISSING APPEAL
                ____________________________________

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
                ____________________________________

      Doyle Sanders, an Oklahoma state prisoner appearing pro se, seeks to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. We construe pro se filings

liberally. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). The district

court dismissed Sanders’s petition as time-barred under 28 U.S.C. § 2244 and denied his

request for a certificate of appealability (“COA”). Sanders now asks us to grant him a

COA and hear his appeal. He argues the Supreme Court in Missouri v. McNeely, 133 S.

Ct. 1552 (2013), recognized a new constitutional right that applies retroactively to cases

on collateral review and therefore his petition, which relies on McNeely, is timely under

§ 2244(d)(1)(C).    He is mistaken.      Even assuming McNeely recognized a new

constitutional right, the right does not apply retroactively to cases on collateral review.
Sanders’s appeal is therefore clearly time-barred. Accordingly, we deny his application

for a COA, and dismiss his appeal.

       A more thorough recitation of the facts underlying Sanders’s state convictions can

be found in Sanders v. State, 60 P.3d 1048 (Okla. Crim. App.).         What matters for our

purposes is that Sanders’s state convictions stem, at least in part, from the fact that (1) he

“was the driver of a vehicle involved in an accident, which caused the death of four

people and caused severe injuries to a fifth person,” and (2) the results of his blood

alcohol test, which were admitted at trial, “showed his blood alcohol content to be .188.”

Id. at 1149. Sanders challenged the admission of his blood alcohol test results in state

court, but to no avail, and his convictions were affirmed on December 19, 2002. See id.

       Sanders does not challenge the reality that his petition would be untimely under

§ 2244(d)(1)(A), (B), and (D). He argues only that, insofar as his petition relies on a new

constitutional right recognized in McNeely, the petition is timely under § 2244(d)(1)(C),

which allows for a one-year limitation period, running from “the date on which the

constitutional right asserted was initially recognized by the Supreme Court, if the right

has been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review.” In McNeely, Supreme Court held that, “in drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream does not constitute an

exigency in every case sufficient to justify conducting a blood test without a warrant.”

133 S. Ct. at 1568.     But even assuming this amounts to the recognition of a new

constitutional right for purposes of § 2244(d)(1)(C), that right would not apply

retroactively to cases on collateral review.

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       Indeed, we have held that a new rule “will apply retroactively [to cases on

collateral review] only if it falls within one of the two narrow exceptions to the

retroactivity bar outlined in [Teague v. Lane, 489 U.S. 288 (1989)].” United States v.

Chang Hong, 671 F.3d 1147, 1156–57 (10th Cir. 2011). Under Teague, “[a] new rule

applies retroactively in a collateral proceeding only if (1) the rule is substantive, or (2) the

rule is a watershed rule of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.”         Id. at 1157 (quotation marks omitted).          A

substantive rule is one that alters the range of conduct or the class of persons that the law

punishes. By contrast, a procedural rule regulates only the manner of determining the

defendant’s culpability. Id.

       The rule in McNeely is procedural, not substantive. It regulates only the manner

in which law enforcement can perform nonconsensual blood testing during drunk-driving

investigations consistent with the Fourth Amendment. See McNeely, 133 S. Ct. at 1568.

“Thus, only the second Teague exception might apply here—as a watershed rule of

criminal procedure implicating the fundamental fairness and accuracy of the criminal

proceeding.”     Chang Hong, 671 F.3d at 1157.             “To surmount this ‘watershed’

requirement, a new rule (1) must be necessary to prevent an impermissibly large risk of

an inaccurate conviction, and (2) must alter our understanding of the bedrock procedural

elements essential to the fairness of a proceeding.” Id. (emphasis added).

       McNeely cannot clear the first hurdle of the “watershed” test. McNeely deemed

warrantless nonconsensual drawing of a suspect’s blood potentially problematic because

it implicates a suspect’s “most personal and deep-rooted expectations of privacy” against

                                              -3-
“compelled physical intrusion beneath [the suspect’s] skin and into his veins.” McNeely,

133 S. Ct. 1552 at 1558, 1560. The opinion nowhere implies that the nonconsensual

drawing of a suspect’s blood during a drunk-driving investigation might create even a

slight risk of an inaccurate conviction, and we fail to see how such a risk could arise. As

such, the rule in McNeely is in no way necessary to prevent an impermissibly large risk

of an inaccurate conviction. Given that the rule in McNeely cannot surmount the first

hurdle of the “watershed” test, we need not address the second.

      In sum, because McNeely states, at most, a procedural rule that in no way

implicates a risk of inaccurate conviction, “[i]t is not within either of the extremely

narrow Teague exceptions to the retroactivity bar.” Chang Hong, 671 F.3d at 1159.

Sanders’s sole timeliness argument is therefore wholly without merit, and his petition is

indeed clearly time-barred under § 2244(d)(1).

       For the reasons set forth above, Sanders’s request for a COA is DENIED and his

appeal is DISMISSED.

                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




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