Eslinger v. Harding

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ROCKY J. ESLINGER,
Petitioner,
v.
SCOTT TINSLEY, Interim Warden,1
Respondent.
Case No. 25-CV-042-RAW-JAR
OPINION AND ORDER
Petitioner Rocky J. Eslinger (“Eslinger”), an Oklahoma prisoner appearing pro se, seeks
federal habeas relief under 28 U.S.C. § 2254, asserting he is in state custody in violation of federal
law pursuant to the criminal judgment entered against him in Muskogee County District Court
Case No. CF-2017-1014. See Dkt. 1. Eslinger raises four (4) grounds for habeas relief. See Dkt.
1 at 10-27.2 Having considered Eslinger’s Petition for Writ of Habeas Corpus (“Petition”) (Dkt.
1), Respondent’s Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus as Time
Barred (“Motion”) (Dkt. 8), Respondent’s Brief in Support of Pre-Answer Motion to Dismiss
Petition for Writ of Habeas Corpus as Time-Barred (Dkt. 9), the record of state-court proceedings
provided by Respondent (Dkts. 9-1 through 9-19), Eslinger’s Objection to Respondent’s Motion
to Dismiss (Dkt. 10) and applicable law, the court finds and concludes that Respondent Motion
shall be granted.
1 Eslinger presently is incarcerated at Dick Conner Correctional Center, and Scott Tinsley is the
interim warden of that facility. The court therefore substitutes Scott Tinsley, Interim Warden, in
place of Randy Harding as party Respondent. See Rule 2(a), Rules Governing Section 2254 Cases
in the United States District Courts. The Clerk of Court shall note on the record this substitution.
2 The court’s citations refer to the CM/ECF header pagination.
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BACKGROUND
In September 2019, a Muskogee County jury found Eslinger guilty of burglary in the
second degree after former conviction of six felonies. Dkt. 9-2. On September 27, 2019, Eslinger
was sentenced to a term of twenty-five (25) years. Dkt. 9-2. Following the entry of the Judgment
and Sentence, the following post-conviction proceedings ensued:
Date 	Case No. 	Event 	Citation
March 11, 2021 	Okla. Crim. App.
F-2019-723
The Oklahoma Court of
Criminal Appeals
(“OCCA”) affirmed
Eslinger’s conviction.
Dkt. 9-3
March 10, 2022 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
First Application for Post-
Conviction Relief (“First
Application”) filed.
Dkt. 9-5
August 2, 2022 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
District court denied First
Application.
Dkt. 9-6
October 28, 2022 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
Pursuant to the OCCA
order remanding the matter
to the district court for a
proper order, the district
court entered a
Supplemental Order
Denying Petitioner’s First
Application.
Dkt. 9-8
November 16, 2022 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
Notice of Post-Conviction
Appeal filed in district
court.
December 5, 2022 	Okla. Crim. App.
PC-2022-1063
Petition in Error appealing
denial of First Application.
Dkt. 9-9
January 4, 2023 	Okla. Crim. App.
PC-2022-1063
OCCA declined
jurisdiction and dismissed
appeal on the basis that
Eslinger’s Notice of Post-
Conviction Appeal was to
Dkt. 9-10
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Date 	Case No. 	Event 	Citation
be filed on or before
November 14, 2022.3
February 8, 2023 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
Second Application for
Post-Conviction Relief
(“Second Application”)
filed seeking an appeal out
of time regarding his First
Application.
Dkt. 9-11
June 22, 2023 	Okla. Crim. App.
PC-2023-500
OCCA granted post-
conviction appeal out of
time. OCCA ordered
Notice of Post-Conviction
Appeal to be filed within
twenty (20) days of the
order in the district court
and the Petition in Error to
be filed with the OCCA
within thirty (30) days of
the order.
Dkt. 9-13
August 25, 2023 	Okla. Crim. App.
PC-2023-718
Petition in Error appealing
the denial of his First
Application filed.
Dkt. 9-14
September 5, 2023 	Okla. Crim. App.
PC-2023-718
OCCA declined
jurisdiction and dismissed
appeal because the Petition
in Error was untimely.
Dkt. 9-15
April 5, 2024 	Muskogee Cnty.
Dist. Ct. Case No.
CF-2017-1014
Third Application for Post-
Conviction Relief (“Third
Application”) filed seeking
an appeal out of time
regarding his First
Application.
Dkt. 9-16
3 	Eslinger had 20 days from October 28, 2022, or until November 17, 2022, to file a notice of
post-conviction appeal. See Rule 5.2(C)(1), Rules of the Oklahoma Court of Criminal Appeals,
Okla. Stat. Ann. tit. 22, Ch. 18, App. Eslinger filed his notice on November 16, 2022. Dkt. 9-10
at 1. However, the OCCA mistakenly found it was due on November 14, 2022. Id. at 1.
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Date 	Case No. 	Event 	Citation
June 19, 2024 	Okla. Crim. App.
PC-2024-418
OCCA granted post-
conviction appeal out of
time.
Dkt. 9-18
November 14, 2024 	Okla. Crim. App.
PC-2024-528
OCCA affirmed denial of
First Application.
Dkt. 9-19
February 11, 2025 	E.D. Okla. 25-cv-42 	Petition for Writ of Habeas
Corpus filed.
Dkt. 1
Based upon the above-described procedural history, Respondent, by and through the
Attorney General of the State of Oklahoma, Gentner F. Drummond, contends Eslinger’s Petition
is time-barred. 	Dkts. 8 and 9. 	Specifically, Respondent argues Eslinger’s Petition is untimely
pursuant to 28 U.S.C. § 2244(d) and Eslinger is not entitled to equitable tolling. See Dkt. 9. The
court agrees.
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), state prisoners have
one (1) year from the latest of four (4) triggering events in which to file a federal habeas petition.
28 U.S.C. § 2244(d)(1). These events include:
(A) 	the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) 	the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) 	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; [and]
(D) 	the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
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28 U.S.C. § 2244(d)(1)(A)-(D). The one-year limitations period generally runs from the date the
judgment became “final” under § 2244(d)(1)(A), unless a petitioner alleges facts that implicate §
2244(d)(1)(B), (C), or (D). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
I. 	28 U.S.C. § 2244(d)(1)(A)
Eslinger failed to initiate his Petition within the time mandated by 28 U.S.C. §
2244(d)(1)(A). As detailed above, Eslinger’s conviction was affirmed by the OCCA on March 11,
2021. Dkt. 9-3. Eslinger did not seek a writ of certiorari from the United States Supreme Court
within 150 days after the OCCA affirmed the conviction.4 	Therefore, Eslinger’s conviction
became final on August 9, 2021,5 150 days after March 11, 2021. Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) (“petitioner’s conviction is not final and the one-year limitation period for
filing a federal habeas petition does not begin to run until—following a decision by the state court
of last resort—after the United States Supreme Court has denied review, or, if no petition for
certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has
passed.” (internal citation and quotation omitted)). Eslinger’s one-year period to file a petition for
writ of habeas corpus began August 10, 2021, and, absent statutory tolling, expired August 10,
4 Normally, a petition for writ of certiorari must be filed within ninety (90) days after entry of the
relevant judgment. See Sup. Ct. R. 13. However, “[m]iscellaneous Supreme Court Order 589 was
issued in response to the COVID-19 pandemic and extended the deadline for petitions for a writ
of certiorari due on or after March 19, 2020, from 90 to 150 days.” Clark v. United States, Case
No. 4:21-CV-00127-JAR, 2021 WL 5918550, at *4 n.3 (E.D. Mo. Dec. 15, 2021) (unpublished).
The Supreme Court rescinded that order on July 19, 2021, but for “any case in which the relevant
lower court judgment . . . was issued prior to July 19, 2021, the deadline to file a petition for a writ
of certiorari remain[ed] extended to 150 days from the date of that judgment or order.” Dkt. 9-4.
5 	Eslinger’s deadline was technically August 8, 2021. 	Since August 8, 2021, was a Sunday,
Eslinger’s deadline to file a petition for certiorari extended to Monday, August 9, 2021. Fed. R.
Civ. P. 6(a)(1)(C).
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2022. The court therefore finds, absent any tolling events, the Petition, filed February 11, 20256
is untimely under 28 U.S.C. § 2244(d)(1)(A).7
II. 	28 U.S.C. § 2244(d)(2)
Statutory tolling suspends the one-year limitations period for the “time during which a
properly filed application for post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending” in state court. 	28 U.S.C. § 2244(d)(2). An application for state
postconviction or other collateral review “remains pending until the application has achieved final
resolution through the State’s postconviction procedures.” Lawrence v. Florida, 549 U.S. 327, 332
(2007) (internal quotation omitted) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)). And the
application must be filed within the applicable one-year limitations period. Clark v. Oklahoma,
468 F.3d 711, 714 (10th Cir. 2006).
Eslinger filed his First Application on March 10, 2022. Dkt. 9-5. Therefore, from August
10, 2021, until March 10, 2022, 212 of Eslinger’s 365 days to file a federal habeas petition were
expended. 	Eslinger’s First Application provided him with statutory tolling from the date it was
filed, March 10, 2022, until the OCCA declined jurisdiction and dismissed his appeal, January 4,
2023. See Dkts. 9-5 and 9-10. Eslinger’s remaining 153 days began to run again on January 5,
2023, until February 8, 2023, the date Eslinger filed his Second Application. Dkt. 9-11. During
this time, 34 additional days were expended. Eslinger enjoyed the benefit of statutory tolling from
February 8, 2023, until July 22, 2023, Eslinger’s deadline to file a Petition in Error. See Dkts. 9-
6 Applying the prison mailbox rule, the court deems the Petition filed on February 11, 2025, the
date Eslinger declares, under penalty of perjury, he placed the Petition in the prison’s legal mail
system. Dkt. 1 at 32; Rule 3(d), Rules Governing Section 2254 Cases in the United States District
Courts.
7 Eslinger did not allege any facts in his Petition triggering 28 U.S.C. §§ 2244(d)(1)(B), (C) or
(D). See Dkt. 1. Therefore, the court does not analyze these subsections.
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13, 9-14 and 9-15. Eslinger’s remaining 119 days began to run on July 23, 2023, and expired on
November 19, 2023. Eslinger did not file his Petition until February 11, 2025.8 Therefore, even
with the benefit of statutory tolling, Eslinger’s Petition is untimely under 28 U.S.C. § 2244(d).
III. 	Equitable Tolling
While the one-year statute of limitations may be subject to 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). 	Moreover, Eslinger’s “burden in making this
demonstration is a heavy one: [federal courts] will apply equitable tolling only if he is able to show
specific facts to support his claim of extraordinary circumstances and due diligence.” 	Vigil v.
Jones, 302 F. App’x 801, 804 (10th Cir. 2008)9 (internal quotation marks omitted) (quoting Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)). 	Nothing in Eslinger’s Petition indicates
extraordinary circumstances precluded the timely submission of the instant action.
Eslinger specifically contends he is entitled to equitable tolling from March 10, 2022, the
filing of his First Application, until November 14, 2024, the date the OCCA affirmed the denial of
his First Application. 	See Dkt. 1 at 30. 	According to Eslinger, he had 127 of his 365 days
remaining when the OCCA affirmed the denial of his First Application (Dkt. 9-19), or until March
20, 2025, rendering his February 11, 2025 Petition timely. Dkt. 1 at 30. Eslinger states, “the time
gap in between: 09/05/23 – 04/05/24, is overcome by the OCCA’s granting petitioner’s appeal-
out-of-time – 6/19/24; see Orange v. Calbone 10th Circuit (2003).” Id. In his Objection, Eslinger
8 	Eslinger’s Third Application did not provide him with any statutory tolling as it was filed on
April 5, 2024 (Dkt. 9-16), after the expiration of his one-year statute of limitations, or November
19, 2023. Clark, 468 F.3d at 714.
9 The court cites all unpublished decisions herein as persuasive authority. Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
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argues the granting of his Third Application (Dkt. 9-18) “reestablish[ed] appellate timelines that
should toll or reset the clock under § 2244(d)(1)(A) or (D) when construed in light of Orange v.
Calbone[.]” Dkt. 10 at 2.
The court understands Eslinger’s position to be that because the OCCA granted his Third
Application (requesting an appeal out of time) on June 19, 2024 (Dkt. 9-18), his one-year to file
the instant Petition was tolled until November 14, 2024, when the OCCA affirmed the denial of
his First Application. Dkt. 9-19. Contrary to Eslinger’s argument, the fact that the OCCA granted
his Third Application on June 19, 2024, did not entitle him to tolling from March 10, 2022, until
November 14, 2024.
At issue in Orange was whether the OCCA’s order granting a direct appeal out of time
constituted “direct review” for § 2244(d)(1)(A) purposes. Orange, 318 F.3d at 1169. The Tenth
Circuit held that it did, as it “essentially placed” the petitioner “in the same procedural posture as
if he had timely pursued a direct appeal from his convictions and sentences.” 	Id. at 1170-71.
Therefore, the petitioner’s one-year statute of limitations did not begin to run until the OCCA, after
granting a direct appeal out of time, affirmed the petitioner’s conviction. Id. at 1173. Furthermore,
the Tenth Circuit expressly distinguished a direct appeal and a post-conviction appeal under the
Oklahoma Post-Conviction Procedure Act. 	See id. at 1171. 	Subsequent to Orange, the Tenth
Circuit has rejected attempts, like Eslinger’s, to invoke Orange to argue that a post-conviction
appeal out of time is part of the direct review process and resets the time to file a federal habeas
petition. 	See Hector v. Oklahoma, 158 F. App’x 157, 158 (10th Cir. 2005) (rejecting the
petitioner’s reliance on Orange for his claim that his statutory year should start “when the OCCA
denied his post-conviction appeal out of time,” noting that Orange “involved a direct appeal out
of time, not a post-conviction appeal out of time,” and concluding that “[t]he denial of post-
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conviction relief in these circumstances is not a part of the direct review process”); Davis v. Ward,
140 F. App’x 805, 806 (10th Cir. 2005) (unpublished) (same).
Accordingly, based on the Tenth Circuit’s guidance, Eslinger is not entitled to a different
trigger date under 28 U.S.C. § 2241(d)(1). His one-year statute of limitations began to run when
his conviction was affirmed by the OCCA, and he did not file a petition for certiorari. Further, as
explained above, the court outlined the proper application of statutory tolling. See supra. Even
with the benefit of statutory tolling provided by his First Application and Second Application10 his
Petition is still untimely. The Third Application was filed beyond the applicable one-year period
and did not provide any statutory tolling to Eslinger. 	Clark, 468 F.3d at 714. In all, Eslinger’s
reliance on Orange is misplaced, and the Orange decision does not provide him with any equitable
tolling.
Beyond his reliance on Orange and his inaccurate application of statutory tolling, Eslinger
does not identify any event or circumstance which entitles him to any tolling, equitable or statutory,
after July 22, 2023. 	In his Objection, Eslinger argues he exercised due diligence and promptly
sought an appeal out of time in February 2023 (Dkt. 9-11) after the OCCA erroneously dismissed
his first post-conviction appeal (Dkt. 9-10). 	See Dkt. 10 at 2. 	Regarding extraordinary
circumstances, Eslinger agues he “suffered from official error, i.e., the OCCA’s miscalculation of
his notice of appeal deadline, which was ben acknowledged in briefing. 	Such state-created
impediment supports equitable tolling.” Id. Eslinger failed to explain how his failure to timely
10 Even if the court provides Eslinger statutory tolling from the filing of his Second Application,
February 8, 2023, until the OCCA declined jurisdiction and dismissed the appeal as untimely,
September 5, 2023, instead of February 8, 2023, until July 22, 2023, when he failed to timely file
a Petition in Error, the instant Petition is still untimely. Under this scenario, Eslinger would have
until January 3, 2023 (119 days after September 6, 2023) to file his Petition. Eslinger’s Petition
was filed February 11, 2025. Dkt. 1.
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file the instant Petition was caused by the OCCA’s miscalculation and erroneous dismissal of his
appeal. Marsh, 223 F.3d at 1220 (petitioner must demonstrate “that the failure to timely file was
caused by extraordinary circumstances beyond his control.” (emphasis added)); see also Ross v.
Varano, 712 F.3d 784, 803 (3d Cir.2013) (“[F]or a petitioner to obtain [equitable tolling] relief
there must be a causal connection, or nexus, between the extraordinary circumstances he faced and
the petitioner’s failure to file a timely federal petition.” (cited by Del Rantz v. Hartley, 577 F. App’x
805, 811 (10th Cir. 2014)).
Beyond the OCCA’s erroneous dismissal of the appeal of the First Application, Eslinger
does not point to any other extraordinary circumstance which prevented him from filing the instant
Petition within the applicable one-year. Regarding due diligence, Eslinger waited seven months
after the September 5, 2023, dismissal of his appeal (Dkt. 9-15) to file his April 5, 2024 Third
Application (Dkt. 9-16). And he waited almost three more months after the OCCA affirmed the
denial of his First Application (Dkt. 9-19) to file the instant Petition.11 For all these reasons, the
court concludes Eslinger has failed to establish extraordinary circumstances and due diligence.
Eslinger is not entitled to equitable tolling, and his February 11, 2025 Petition, filed well beyond
the AEDPA statute of limitations deadline, is time-barred.
11 Eslinger’s Third Application outlines a variety of purported reasons that his August 25, 2023
Petition in Error was delinquently filed with the OCCA. See Dkt. 9-16 at 8-12. Eslinger did not
present these facts in his instant Petition. 	See Dkt. 1. 	Nevertheless, even liberally construing
Eslinger’s Petition and considering these reasons, this explanation regarding the belated filing of
his Petition in Error does not establish any extraordinary circumstance that caused the untimely
filing of the instant Petition.
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IV. 	Actual Innocence
In his Objection, Eslinger argues he satisfies the actual innocence gateway. Dkt. 10 at 3.12
The Tenth Circuit recognizes the “fundamental miscarriage of justice exception” is “commonly
known as a showing of actual innocence[.]” Fontenot v. Crow, 4 F.4th 982, 1028 (10th Cir. 2021).
Successful actual innocence claims are rare due to the demanding evidentiary requirements for
such claims. McQuiggin v. Perkins, 569 U.S. 383, 386 and 401 (2013); House v. Bell, 547 U.S.
518, 538 (2006). “[P]risoners asserting innocence as a gateway to defaulted claims must establish
that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House, 547 U.S. at 536-37 (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)); accord McQuiggin, 569 U.S. at 399 (applying the same standard to
petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under
§ 2244(d)(1)). “To be credible, a claim of actual innocence requires a petitioner to present ‘new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.’” Fontenot, 4 F.4th at 1031 (quoting
Schulp, 513 U.S. at 324).
Even if the court grants Eslinger leeway and accepts the actual innocence argument raised
in his Objection, Eslinger did not satisfy the requirements of the actual innocence gateway.
Eslinger argues his “conviction rests solely on uncorroborated testimony of a co-defendant with
motive to shift blame. No forensic, eyewitness, or documentary evidence proves burglary beyond
12 Eslinger may not amend his Petition by including additional allegations in his Objection. Cf.
Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (“It is well-established, however, that in
determining whether to grant a motion to dismiss, the district court … [is] limited to assessing the
legal sufficiency of the allegations contained within the four corners of the complaint.”); Jones v.
Ciolli, No. 22-CV-3262, 2023 WL 11888941 at *1 (D. Colo. May 3, 2023) (unpublished)
(applying Jojola’s principle to writ of habeas corpus).
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a reasonable doubt. A handwriting expert could have shown bills of sale to be genuine-evidence
the jury never heard.” Dkt. 10 at 3. This is merely an argument. Eslinger has failed to present
any “new reliable evidence” that was not presented at trial, Fontenot, 4 F.4th at 1031, or satisfy
the demanding evidentiary requirements required of actual innocence claims, Perkins, 569 U.S. at
386 and 401; House, 547 U.S. at 538. 	Accordingly, Eslinger failed to adequately raise and
demonstrate actual innocence and, thereby, he cannot avail himself of the actual innocence
gateway.
CONCLUSION
The court finds and concludes Eslinger cannot obtain federal habeas relief under 28 U.S.C.
§ 2254. Eslinger’s Petition is time-barred. The court, therefore, dismisses the Petition. The court
further concludes that no certificate of appealability shall issue because no reasonable jurists would
debate the dismissal of the Petition on statute-of-limitations grounds. 28 U.S.C. § 2253(c); Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE ORDERED that the Motion to Dismiss (Dkt. 8) is GRANTED; the
Petition (Dkt. 1) is DISMISSED; a certificate of appealability is DENIED; and a separate
judgment shall be entered in this matter.
IT IS FURTHER ORDERED that the Clerk of Court shall note on the record the
substitution of Scott Tinsley, Interim Warden, in place of Randy Harding as party Respondent.
DATED this 3 rd day of March, 2026.
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