                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    May 15, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 DERRICK R. PARKHURST,

       Petitioner - Appellant,
                                                       No. 12-8080
 v.                                            (D.C. No. 12-CV-00066-ABJ)
                                                         (D. Wyo.)
 EDDIE WILSON, Warden of the
 Wyoming Penitentiary; GREGORY A.
 PHILLIPS, the Attorney General of
 the State of Wyoming,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Derrick R. Parkhurst, a Wyoming inmate appearing pro se, appeals the

district court’s order dismissing his 28 U.S.C. § 2254 motion as untimely,

unauthorized, and without merit. We hold that no reasonable jurist could debate

the district court’s dismissal on procedural grounds. See Slack v. McDaniel, 529

U.S. 473, 484–85 (2000). We therefore deny Mr. Parkhurst’s application for a

certificate of appealability (COA) and dismiss his appeal.

A.    The District Court Lacked Jurisdiction Under 28 U.S.C. § 2244

      The district court properly characterized Mr. Parkhurst’s § 2254 motion as
a “second or successive application.” His previous motion, which also presented

an ineffective assistance claim, was dismissed due to state procedural default.

Parkhurst v. Shillinger, 128 F.3d 1366, 1370 (10th Cir. 1997) (citing Castille v.

Peoples, 489 U.S. 346, 351 (1989)). Because that disposition was on the merits,

the current application is considered successive. See Carter v. United States, 150

F.3d 202, 205–06 (2d Cir. 1998) (per curiam); see also Henderson v. Lampert,

396 F.3d 1049, 1053 (9th Cir. 2005); cf. Hawkins v. Evans, 64 F.3d 543, 547

(10th Cir. 1995) (concluding that dismissal based on procedural default was on

the merits under pre-AEDPA successive petition doctrine). Therefore, absent

prior authorization from this circuit, the district court lacked jurisdiction to hear

the current application. 28 U.S.C. § 2244(b)(3).

B.    Mr. Parkhurst’s § 2254 Motion Is Time-Barred

      In addition, Mr. Parkhurst’s § 2254 motion is barred by AEDPA’s one-year

statute of limitations. Mr. Parkhurst admits his motion is untimely but claims

equitable tolling is warranted for two reasons: 1) he did not discover his

attorney’s conflict of interest until after his direct appeal had concluded, and 2)

he recently discovered a relevant legal defense.

      Mr. Parkhurst’s first argument is unavailing. Although he did not discover

trial counsel’s alleged conflict of interest until after his direct appeal, Mr.

Parkhurst could have filed a postconviction ineffective assistance claim. As we

previously explained, “Wyoming’s postconviction scheme afforded [Mr.

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Parkhurst] the equivalent of direct appellate review of his ineffective assistance

claim.” Parkhurst, 128 F.3d at 1371. Mr. Parkhurst has not shown that he

diligently pursued postconviction relief, or that extraordinary circumstances

prevented timely filing. See Holland v. Flordia, 130 S. Ct. 2549, 2562 (2010).

Therefore, he is not entitled to equitable tolling. See id.

      In reaching this conclusion, we reject Mr. Parkhurst’s argument that

Martinez v. Ryan, 132 S. Ct. 1309 (2012), compels a different outcome. Martinez

involved an Arizona law that prohibited ineffective assistance claims to be raised

on direct appeal. The Court held that:

      [w]here, under state law, claims of ineffective assistance of trial
      counsel must be raised in an initial-review collateral proceeding, a
      procedural default will not bar a federal habeas court from hearing a
      substantial claim of ineffective assistance at trial if, in the initial-
      review collateral proceeding, there was no counsel or counsel . . .
      was ineffective.

Id. at 1320 (emphasis added).

      As the district court correctly noted, Martinez is distinguishable. Unlike

Arizona, Wyoming does not prohibit a defendant from bringing an ineffective

assistance claim on direct appeal. See Wyo. Stat. Ann. §§ 7-12-308, 7-14-103;

Schreibvogel v. State, 269 P.3d 1098, 1102 (Wyo. 2012). From a practical

perspective, it appears Mr. Parkhurst was unable raise his claim on direct

appeal—but the state of Wyoming did not preclude him from doing so. See

Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012). Therefore, the district


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court’s decision to deny Mr. Parkhurst’s motion to alter or amend his petition to

include a Martinez argument is not reasonably debatable. See Martinez, 132 S.

Ct. at 1315 (characterizing its holding as a “narrow exception”); see also Banks,

692 F.3d at 1148.

      We further deny equitable tolling based on Mr. Parkhurst’s recent

discovery of a relevant legal defense. “[I]t is well established that ignorance of

the law, even for an incarcerated pro se petitioner, generally does not excuse

prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quotation

omitted); see also United States v. Denny, 694 F.3d 1185, 1191 (10th Cir. 2012).

In light of the facts alleged, we do not find an “extraordinary circumstance” that

would warrant equitable tolling. See Marsh, 223 F.3d at 1220. 1

C.    Petition for Initial En Banc Hearing

       Finally, we deny the petition for an initial en banc hearing. Mr. Parkhurst

has not met Federal Rule of Appellate Procedure 35(b)’s requirement that the

petition begin with a statement that either: “consideration by the full court is . . .

necessary to secure and maintain uniformity of the court’s decisions” or “the

proceeding involves one or more questions of exceptional importance.” The cases

Mr. Parkhurst cites are not contradictory—they illustrate a general rule and its


      1
       We also reject Mr. Parkhurst’s claim that equitable tolling is warranted
because he is actually innocent. “[A] defendant cannot be actually innocent of a
noncapital sentence.” United States v. Denny, 694 F.3d 1185, 1191 (10th Cir.
2012) (quotation omitted).

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exception. In general, a prisoner must obtain prior circuit authorization to pursue

a second or successive § 2254 petition. 28 U.S.C. § 2244(3). However, prior

authorization is unnecessary where the previous petition was dismissed for failure

to exhaust state remedies that remain available. Calcari v. Ortiz, No. 04-1422,

2005 WL 300424, *1 n.2 (10th Cir. Feb. 9, 2005). Mr. Parkhurst also has failed

to identify a question of exceptional importance.

      We AFFIRM the district court’s order dismissing the petition and denying

Mr. Parkhurst’s motion to amend. We also DENY a COA and DENY the motion

for an initial hearing en banc.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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