Dennis v. Crow

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
RAPHEL UNTEEKE DENNIS,

Petitioner - Appellant,

v.

SCOTT CROW,

Respondent - Appellee.

No. 19-6135
(D.C. No. 5:19-CV-00381-G)
(W.D. Okla.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY
*

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Before LUCERO, PHILLIPS, and EID, Circuit Judges.
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Raphel Dennis seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss
the appeal.
I
On June 15, 2015, Dennis pled guilty in Oklahoma court to robbery with a
firearm, possession of marijuana and cocaine with intent to distribute, driving

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit

January 29, 2020

Christopher M. Wolpert
Clerk of Court
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without a license, and possession of cocaine. He received several sentences of
imprisonment that were to run concurrently. The longest of his sentences, for
robbery with a firearm, was for 26 years of imprisonment, with all but the first
thirteen years suspended.
On November 21, 2016, Dennis filed an application for state post-conviction
relief. The trial court struck his application, and the Oklahoma Court of Criminal
Appeals denied his petition requesting review. Dennis filed this § 2254 petition in
federal district court. The court denied his petition as time-barred and declined to
grant a COA. Dennis now seeks a COA from this court.
II
A petitioner may not appeal the denial of habeas relief under § 2254 without a
COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has made
a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To meet
this standard, Dennis must demonstrate “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a
one-year limitations period on habeas petitions filed by state prisoners. 28 U.S.C.
§ 2244(d). This period generally runs from the date a conviction becomes final. See
§ 2244(d)(1)(A). Dennis’ conviction became final ten days after his guilty plea,
when the period for filing an appeal expired. See Fisher v. Gibson, 262 F.3d 1135,
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1142 (10th Cir. 2001). Because he pled guilty on June 15, 2015, his conviction
became final on June 25. The one-year limitations period began to run the next day
and expired on Monday, June 27, 2016. See Fed. R. Civ. P. 6(a)(1)(C) (extending a
period ending on a Sunday to the following Monday).
Although the period is statutorily tolled while a properly filed application for
state post-conviction relief is pending, § 2244(d)(2), Dennis did not file his petition
for post-conviction relief until November 21, 2016. Absent equitable tolling, the
limitations period expired before Dennis filed his application for state post-
conviction relief. His § 2254 petition was therefore untimely.
At the district court, Dennis argued for the application of § 2244(d)(1)(D),
under which the limitations period runs from “the date on which the factual predicate
of the claim or claims presented could have been discovered through the exercise of
due diligence.” Id. He contended the limitations period began on November 24,
2015, when the state trial court issued an order denying his motion to correct the
record and his motion requesting transcripts. Dennis appears to abandon this
argument on appeal.
Even if we were to hold that the limitations period began on November 24,
2015, Dennis’ petition would still be untimely. In that case, he would have had until
November 25, 2016 to file a habeas petition. See United States v. Hurst, 322 F.3d
1256, 1260-61 (10th Cir. 2003) (holding AEDPA limitations period is calculated
using anniversary-date method even when intervening period includes leap year).
Dennis filed his application for state post-conviction review on November 21, 2016,
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leaving four days in the limitations period. The period resumed after the final
dismissal of his application on May 18, 2018 and expired on May 22, 2018. Dennis
filed his habeas petition on April 25, 2019.
Thus, even if the limitations period began on November 24, 2015, the petition
would still be untimely absent equitable tolling. Equitable tolling “is only available
when an inmate diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Dennis does not offer a reason for the
untimeliness of his § 2254 petition.
Equitable tolling is also appropriate if “a prisoner is actually innocent.”
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). To meet the actual innocence
exception, a petitioner must demonstrate that “it is more likely than not that no
reasonable juror would have convicted him” based upon new reliable evidence.
Schlup v. Delo, 513 U.S. 298, 327 (1995). Dennis does not contend that he is
actually innocent of the crimes of which he was convicted. Therefore, equitable
tolling is unavailable.

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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Dennis’ motion to proceed in forma pauperis is GRANTED.
Entered for the Court

Carlos F. Lucero
Circuit Judge
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