Jenkins v. Crow

FILED
United States Court of Appeals
Tenth Circuit
July 14, 2020
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DAVID MICHAEL JENKINS,
Petitioner - Appellant,
v.
SCOTT CROW,
Respondent - Appellee.
No. 19-5083
(D.C. No. 4:19-CV-00184-JED-JFJ)
(N.D. Okla.)
ORDER DENYING CERTIFICATE OF APPEALABILITY
*
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
Pro se Petitioner-Appellant David Michael Jenkins
1
seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.
§ 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial
of § 2254 petition). The district court held that his petition was untimely under
*
This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
1
Because Mr. Jenkins is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
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28 U.S.C. § 2244(d)(1) and denied him a COA. Because he has not shown “that
reasonable jurists could find the district court’s decision on timeliness debatable
or wrong,” we, too, deny him a COA. United States v. Hoon, 762 F.3d 1172,
1173 (10th Cir. 2014); accord Kenneth v. Martinez, 771 F. App’x 862, 864 (10th
Cir. 2019) (unpublished).
I. BACKGROUND
In 2010, Oklahoma convicted Mr. Jenkins, after a jury trial, of first-degree
murder in violation of OKLA. STAT. tit. 21, § 701.7, and sentenced him to life in
prison. On August 3, 2011, the Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed the judgment of conviction. Mr. Jenkins did not petition the U.S.
Supreme Court for a writ of certiorari. The judgment, therefore, became final on
November 1, 2011. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (explaining
that when a section 2254 petitioner does not “pursue direct review all the way to
this Court,” his “judgment becomes final at the ‘expiration of the time for seeking
such review’—when the time for pursuing direct review in this Court . . . expires”
(quoting 28 U.S.C. § 2244(d)(1)(A))); see also SUP. CT. R. 13(1) (providing that
“a petition for a writ of certiorari to review a judgment in any case . . . entered by
a state court of last resort . . . is timely when it is filed . . . within 90 days after
entry of the judgment”); United States v. Faulkner, 950 F.3d 670, 677 n.8 (10th
2
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Cir. 2019) (noting that the OCCA is “Oklahoma’s court of last resort for criminal
appeals”).
For nearly four years, Mr. Jenkins did not further challenge his judgment of
conviction. On October 19, 2015, however, he applied to an Oklahoma trial court
for state post-conviction relief. After the state trial court denied his application,
the OCCA affirmed the denial in October 2018.
On April 3, 2019, Mr. Jenkins petitioned a federal district court for a writ
of habeas corpus under 28 U.S.C. § 2254. He claimed, relying on Lafler v.
Cooper, 566 U.S. 156 (2012) (holding that the standard for ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668 (1984), was satisfied
where, among other things, a defendant had rejected a favorable plea offer based
on the unreasonable advice of counsel), that his trial lawyer was ineffective for
advising him to reject a plea offer and that his appellate counsel was ineffective
for failing to raise on appeal his trial lawyer’s plea-related ineffectiveness.
The district court promptly examined Mr. Jenkins’s petition, concluded it
“is subject to being dismissed as time-barred and that nothing in [it] demonstrates
that [he could] overcome that time bar” and ordered him to show cause as to why
it should not be dismissed. R. at 43 (Dist. Ct.’s Op. & Order, filed Apr. 8, 2019);
see 28 U.S.C. § 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
3
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judgment of a State court.”).
2
The district court noted that Mr. Jenkins filed his
petition more than seven years after his judgment became final, see 28 U.S.C.
§ 2244(d)(1)(A); that the Supreme Court in Lafler did not recognize a new
constitutional right to effective assistance of counsel, see id. § 2244(d)(1)(C); and
that, even if Lafler had recognized a new right, his petition would still be
untimely because he filed it over one year after Lafler was decided. The district
court further observed that because Mr. Jenkins “filed his first application for
state postconviction relief on October 19, 2015, nearly three years after his
AEDPA deadline expired, he is not entitled to statutory tolling.” R. at 41 (citing
2
28 U.S.C. § 2244(d)(1) provides further as follows:
The limitation period shall run from the latest of—
(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; or
(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)(2) (“The time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation
. . . .” (emphasis added))).
Mr. Jenkins timely responded to the district court’s show-cause order. He
focused his response primarily on the proposition that Lafler had recognized a
new Sixth Amendment right and that his petition under Lafler, seven years later,
was still timely because he had been “in a maximum security prison without
access to legal materials, or updates from [counsel],” and thus “did not learn of
the Lafler decision until shortly before he submitted his application for [state]
post conviction [relief in October 2015].” Id. at 46 (Pet’r’s Resp., filed Apr. 29,
2019) (italics added) (bold in original omitted). He also asserted that Oklahoma
should have reviewed his post-conviction challenges for plain error under Federal
Rule of Criminal Procedure 52(b) and that, if Oklahoma had provided him with an
evidentiary hearing, he would have established plain error. Mr. Jenkins, however,
did not provide any reasons or authorities in support of his bald assertion that
Lafler recognized a new constitutional right, and he did not elaborate further as to
why incarceration in a maximum security prison prevented him from filing a
timely petition.
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The district court reviewed Mr. Jenkins’s response and then dismissed his
petition with prejudice “as time-barred.” Id. at 63 (Dist. Ct.’s Op. & Order, filed
Aug. 22, 2019). The court observed that it had already held the petition “untimely
under [28 U.S.C.] § 2244(d)(1)(A)” because Mr. Jenkins’s judgment of conviction
became final in November 2011 “and his one-year limitation period therefore . . .
expired [in November] 2012.” Id. at 58. The court also noted that it had held that
Mr. Jenkins “could not rely on Lafler to support application of § 2244(d)(1)(C)
because Lafler was not the first Supreme Court case to recognize the
constitutional right [he had] asserted—i.e., the Sixth Amendment right to the
effective assistance of plea counsel.” Id.; see United States v. Greer, 881 F.3d
1241, 1245 (10th Cir. 2018) (stating that “a rule is not new [for federal habeas
purposes] if it is ‘merely an application’ of an existing right or principle”
(quoting Chaidez v. United States, 568 U.S. 342, 348 (2013))). The court further
observed that it had concluded that Mr. Jenkins’s “application for postconviction
relief, filed October 19, 2015, had no tolling effect, under § 2244(d)(2),
regardless of whether his one-year limitation period commenced under
§ 2244(d)(1)(A) or (d)(1)(C).” R. at 59; see Kenneth, 771 F. App’x at 864 (“Only
state petitions for post-conviction relief filed within the one year allowed by
AEDPA will toll the statute of limitations [under § 2244(d)(2)].” (quoting Clark
v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006))).
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The district court rejected Mr. Jenkins’s arguments as to why his petition,
filed on April 3, 2019, was nonetheless timely. The court held first that, even if
Lafler recognized a new constitutional right, Mr. Jenkins’s “general allegation
regarding his lack of access to legal materials and legal assistance—without
reference to when or how long those circumstances existed—lacks the specificity
required to support equitable tolling.” R. at 59; see Lozano v. Montoya Alvarez,
572 U.S. 1, 10 (2014) (explaining that “equitable tolling pauses the running of, or
‘tolls,’ a statute of limitations when a litigant has pursued his rights diligently but
some extraordinary circumstance prevents him from bringing a timely action”);
Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015) (“An inmate bears a
strong burden to show specific facts to support his claim of extraordinary
circumstances and due diligence.” (quoting Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008))). The court held next that Mr. Jenkins’s alleged lack of access
to legal materials and assistance and his late discovery of Lafler also did not
entitle him to a later-commencing limitations period under 28 U.S.C.
§ 2244(d)(1)(B)–(D). R. at 60–61. The court held last that Mr. Jenkins’s
challenges to Oklahoma’s resolution of his application for state post-conviction
relief, including its alleged denial of an evidentiary hearing and plain-error
review, did “not address, let alone support, his request for equitable tolling.” Id.
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at 63. The court, therefore, dismissed Mr. Jenkins’s petition as time-barred and
declined to grant him a COA. Id.
Mr. Jenkins timely appeals from the district court’s order dismissing his 28
U.S.C. § 2254 petition, and he now applies to us for a COA.
II. DISCUSSION
“Before a petitioner may appeal the [dismissal] of a § 2254 petition, he or
she must obtain a COA.” Vreeland v. Zupan, 906 F.3d 866, 875 (10th Cir. 2018)
(citing 28 U.S.C. § 2253(c)(1)(A)). We may grant a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” Okyere v.
Rudek, 732 F.3d 1148, 1149 (10th Cir. 2013) (quoting 28 U.S.C. § 2253(c)(2)).
If, as here, the petition was dismissed “on procedural grounds, the applicant faces
a double hurdle.” Id. at 1150. “Not only must [he] make a substantial showing of
the denial of a constitutional right, but he must also show ‘that jurists of reason
would find it debatable . . . whether the district court was correct in its procedural
ruling.’” Id. (omission in original) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). “Rather than addressing these two threshold requirements in order,
we may ‘resolve the issue whose answer is more apparent from the record and
arguments.’” Frost v. Pryor, 749 F.3d 1212, 1230–31 (10th Cir. 2014) (quoting
Slack, 529 U.S. at 485). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
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conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Okyere, 732 F.3d at 1150
(quoting Slack, 529 U.S. at 484).
Mr. Jenkins asserts in his application for a COA that the district court
wrongly focused on his petition’s untimeliness “without consideration of the fact
that [he] properly filed a state post conviction [relief application], that was
accepted and ruled on.” Aplt.’s Opening Br. at 6. However, the record
establishes that the district court considered his October 2015 “application for
state postconviction relief,” but concluded it did not entitle him “to statutory
tolling” under 28 U.S.C. § 2244(d)(2) because he filed it “nearly three years after
his AEDPA deadline expired” under 28 U.S.C. § 2244(d)(1). R. at 41; see id.
at 59. In other words, the district court correctly held that Mr. Jenkins is not
entitled to tolling based on that application because he filed it too late—i.e., after
AEDPA’s one-year limitations period had expired. Kenneth, 771 F. App’x at 864
(“Only state petitions for post-conviction relief filed within the one year allowed
by AEDPA will toll the statute of limitations.” (quoting Clark, 468 F.3d at 714)).
Mr. Jenkins also argues that he merely “forfeited” his claims by filing an
untimely petition and, thus, that the district court should have reviewed them for
plain error. Aplt.’s Opening Br. at 15. He, however, is mistaken: when a habeas
petition is untimely, courts generally dismiss it. See, e.g., Kenneth, 771 F. App’x
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at 863 (holding that “the district court correctly dismissed [the petitioner’s
§ 2254] application as untimely under 28 U.S.C. § 2244(d)(1)”); Kilgore v.
Attorney Gen. of Colo., 519 F.3d 1084, 1089 (10th Cir. 2008) (noting that a court
may “dismiss [a] petition when it is clear that the petition is, in fact, untimely”);
see also In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam)
(determining that the “dismissal” of a “habeas petition as time-barred [i]s a
decision on the merits”). A petition’s untimely claims are not reviewed for plain
error since their untimeliness operates as a bar, not a forfeiture. See McQuiggin
v. Perkins, 569 U.S. 383, 399 (2013) (calling a claim’s untimeliness under
28 U.S.C. § 2244(d)(1) a “statutory time bar”); Kenneth, 771 F. App’x at 864
(calling it a “procedural bar”).
The remainder of Mr. Jenkins’s briefing is primarily devoted to contending
that Oklahoma should have granted him an evidentiary hearing and plain-error
review of his collateral challenges in his state post-conviction proceedings. See
Aplt.’s Opening Br. at 8–14. We agree with the district court that Mr. Jenkins’s
“attacks” on the Oklahoma courts’ rulings “do not address, let alone support, his
request for equitable tolling.” R. at 63. For we do not see how the denial of both
an evidentiary hearing and plain-error review at a state post-conviction
proceeding years after his judgment became final could form an “extraordinary
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circumstance prevent[ing] him from bringing a timely [petition].” See Lozano,
572 U.S. at 10.
Mr. Jenkins “must show that reasonable jurists could find the district
court’s decision on [the] timeliness [of his petition] debatable or wrong” to obtain
a COA. Hoon, 762 F.3d at 1173. He has failed to shoulder that burden. Indeed,
in his application for a COA, Mr. Jenkins does not even contend that the district
court erred in holding that his petition is untimely under 28 U.S.C. § 2244(d)(1).
“The first task of an appellant,” however, “is to explain to us why the district
court’s decision was wrong.” Nixon v. City & Cty. of Denver, 784 F.3d 1364,
1366 (10th Cir. 2015). By not telling us why the district court erred in deeming
his petition untimely, Mr. Jenkins has waived his challenge to that determination.
Davis v. McCollum, 798 F.3d 1317, 1320 (10th Cir. 2015) (holding that petitioner
“waived any potential challenge” to the district court’s decision that his habeas
claims were “time-barred” by “failing to address it in his opening brief on
appeal”); accord United States v. Hernandez, 444 F. App’x 230, 232–33 (10th
Cir. 2010) (unpublished).
3

As a pro se applicant, Mr. Jenkins is certainly entitled to have us “construe
his arguments liberally,” but “this rule of liberal construction stops . . . at the
3
Mr. Jenkins, in his opening brief, repeatedly argues the merits of his
claims for habeas relief. We, however, cannot address the merits of those claims
unless and until a COA has been issued pertaining to them. Gonzalez, 565 U.S.
at 142; accord Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003).
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point at which we begin to serve as his advocate.” United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009). We, in other words, “cannot make arguments for
him.” Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir.
2017). For that reason, we enforce against him, as we generally do with pro se
litigants, his waiver of a challenge due to his failure to raise it. See, e.g., United
States v. Wells, 873 F.3d 1241, 1254 (10th Cir. 2017) (“Even given our liberal
construction of pro se briefing, Mr. Lyman has not adequately presented this
argument in his opening brief; accordingly, we may deem it waived.”); Toevs v.
Reid, 685 F.3d 903, 911 (10th Cir. 2012) (“This court has not hesitated to apply
this waiver rule to prisoner litigants, even to prisoners who proceed pro se and
therefore are entitled to liberal construction of their filings.” (citations omitted)).
More specifically, we deem waived his challenge to the district court’s limitations
ruling. In any event, for substantially the reasons that the district court gave, we
see no room for reasonable debate concerning the correctness of the court’s
determination that Mr. Jenkins’s petition is time-barred under 28 U.S.C.
§ 2244(d)(1).
III. CONCLUSION
We conclude that Mr. Jenkins has not shown “that reasonable jurists could
find the district court’s decision on timeliness debatable or wrong.” Hoon, 762
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F.3d at 1173; see Frost, 749 F.3d at 1230–31; Okyere, 732 F.3d at 1150. We,
thus, DENY Mr. Jenkins’s application for a COA and DISMISS this appeal.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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