Scotty L. Brooks-Gage v. Jimmy Martin

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
SCOTTY L. BROOKS-GAGE,
Petitioner - Appellant,
v.
JIMMY MARTIN,
Respondent - Appellee.
No. 21-7008
(D.C. No. 6:19-CV-00347-JFH-KEW)
(E.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Scotty L. Brooks-Gage, a state prisoner, seeks a certificate of appealability (COA)
under 28 U.S.C. § 2253(c)(1)(A) to challenge the denial of his 28 U.S.C. § 2254 habeas
petition.1 We deny the application for a COA.
* This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 We liberally construe Brooks-Gage’s pro se filings but will not act as his
advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (citation
omitted).
FILED
United States Court of Appeals
Tenth Circuit
August 25, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 1

-- 1 of 7 --

2
BACKGROUND
The federal district court ruled that Brooks-Gage’s § 2254 habeas petition was
time-barred under 28 U.S.C. § 2244(d). In the following paragraphs, we describe the
timeline of events in Brooks-Gage’s state proceedings, as shown by the record.
On October 19, 2007, the state district court accepted Brooks-Gage’s entry of an
Alford plea to one count of first-degree murder. 2 As part of the plea agreement, the state
dismissed eight additional charges and recommended life imprisonment without the
possibility of parole (initially, the state had sought the death penalty).
On October 25, 2007, the court entered a “Judgment and Sentence,” imposing the
state’s recommended sentence. Sometime afterward, Brooks-Gage sought to withdraw
his plea. After holding a hearing, the state court denied his motion. On February 25,
2009, the Oklahoma Court of Criminal Appeals declined to issue a Writ of Certiorari that
would have allowed him to withdraw his plea.
On April 16, 2009, Brooks-Gage filed his first application for state postconviction
relief, which the state district court denied on August 10, 2010. Brooks-Gage did not
appeal that decision.
On March 18, 2016, Brooks-Gage filed a second application for state
postconviction relief, which the state district court also denied, on June 7, 2016. Brooks-
Gage appealed that denial. On August 12, 2016, the Oklahoma Court of Criminal
2 An Alford plea is “a guilty plea accompanied by protestations of innocence.”
United States v. Buonocore, 416 F.3d 1124, 1129–30 (10th Cir. 2005).
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 2

-- 2 of 7 --

3
Appeals dismissed the appeal, stating that it was granting Brooks-Gage’s motion to
dismiss the appeal. Later, Brooks-Gage alleged that he never filed such a motion.
On June 14, 2017, Brooks-Gage filed another application for state postconviction
relief, requesting a recommendation from the district court for an appeal out of time. On
July 26, 2017, the state district court denied that request. On March 21, 2018, Brooks-
Gage renewed the application. On December 27, 2018, the state district court denied it
again. On August 30, 2019, the Oklahoma Court of Criminal Appeals denied this
“subsequent application for post-conviction relief.” R. at 211.
On September 11, 2019, Brooks-Gage commenced the current § 2254 habeas
proceeding in the Western District of Oklahoma. That court transferred the case to the
Eastern District of Oklahoma, because that was “where the [state] conviction was
obtained.” R. at 14. On November 4, 2019, Brooks-Gage filed his amended habeas
petition there. After ruling that Brooks-Gage’s habeas petition was untimely, the federal
district court denied a COA. Brooks-Gage now applies to us for a COA under
§ 2253(c)(1)(A).
DISCUSSION
Brooks-Gage must obtain a COA before he may appeal. 28 U.S.C.
§ 2253(c)(1)(A). To obtain a COA, he must make “a substantial showing of the denial of
a constitutional right.” § 2253(c)(2). To make this showing after the district court
dismissed the habeas petition on procedural grounds, he must demonstrate (1) “that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right” and (2) “that jurists of reason would find it debatable
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 3

-- 3 of 7 --

4
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 478 (2000). That is, he must show “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.” Id. at 483–84 (internal quotation marks and citation omitted).
We need not discuss the first showing, because Brooks-Gage has failed to make
the second showing. Reasonable jurists would agree that the federal district court’s
procedural ruling was correct, i.e., that § 2244(d) barred Brooks-Gage’s § 2254 habeas
petition.
Under § 2244(d), a one-year statute of limitations applies to § 2254 habeas
petitions. This limitations period runs from “the date on which the judgment became
final.”3 § 2244(d)(1)(A). This period is tolled, however, while a “properly filed
application for [s]tate post-conviction or other collateral review with respect to
the . . . judgment . . . is pending.” § 2244(d)(2).
No reasonable jurists could debate whether Brooks-Gage filed his § 2254 habeas
petition after the § 2244(d) limitations period had expired. As noted, Brooks-Gage filed
his first application for state postconviction relief on April 16, 2009. His judgment
became final after that, on May 26, 2009—ninety days after his direct appeal was
denied—when the time for filing a certiorari petition with the Supreme Court expired.
3 Section 2244(d) provides that the limitations period will run “from the latest
of” “the date on which the judgment became final” or the date of one of three other listed
events. § 2244(d)(1)(A)–(D). None of the other three events have occurred here, so we do
not discuss them.
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 4

-- 4 of 7 --

5
U.S. Sup. Ct. R. 13(1); Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011)
(citation omitted) (judgment becomes final at the end of the ninety days for filing a
certiorari petition with the Supreme Court). Because the application for state
postconviction relief was pending before the judgment became final, the one-year
limitations period did not begin running when the judgment became final. See
§ 2244(d)(2). The limitations period did not run while the application for state
postconviction relief was pending. See id. The state district court denied the application
for postconviction relief on August 10, 2010. On September 9, 2010, the thirty days
during which Brooks-Gage could have appealed to the Oklahoma Court of Criminal
Appeals expired. See 22 Okla. Stat. Ann. § 1087. The limitations period began the next
day, on September 10, 2010. See Gibson v. Klinger, 232 F.3d 799, 803, 807 (10th Cir.
2000) (limitations period does not run during the thirty days for appealing to the
Oklahoma Court of Criminal Appeals); cf. United States v. Hurst, 322 F.3d 1256, 1260–
61 (10th Cir. 2003) (limitations period begins the day after the time for appealing
expires). The limitations period expired one year later, on September 10, 2011.4 Brooks-
Gage filed his § 2254 habeas petition eight years too late, on September 11, 2019.
As a separate, though related, matter, the federal district court noted that Brooks-
Gage referenced actual innocence in his amended habeas petition and in documents filed
in his state postconviction proceedings. Recognizing that “[a]ctual innocence can serve as
4 We note that Brooks-Gage filed the second and additional applications for
state postconviction relief after September 10, 2011. So § 2244(d)(2) statutory tolling
could not follow from those.
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 5

-- 5 of 7 --

6
a gateway past the § 2244(d) limitations period,” the court ruled that Brooks-Gage had
failed to meet his burden for “asserting a claim of actual innocence” entitling him to
bypass the limitations period. R. at 217.
No reasonable jurists could debate whether Brooks-Gage has met that
“demanding” burden. House v. Bell, 547 U.S. 518, 538 (2006) (citations omitted).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623–24 (1998) (citation omitted). Claiming actual innocence
implicates “an equitable exception”—specifically, the fundamental-miscarriage-of-justice
exception—to the § 2244(d) limitations period, distinguishable from equitable tolling.
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (emphasis and citation omitted). The
exception applies only when “new evidence shows ‘it is more likely than not that no
reasonable juror would have convicted the petitioner.’” Id. at 394–95 (alteration omitted)
(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To benefit from the exception, a
petitioner must support his claim of actual innocence with “new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” House, 547 U.S. at 537 (quoting
Schlup, 513 U.S. at 324). On appeal, Brooks-Gage merely points to witness testimony
given at a preliminary hearing in his criminal case, not to new evidence.
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 6

-- 6 of 7 --

7
CONCLUSION
In conclusion, no reasonable jurists could debate whether the district court
correctly ruled that Brooks-Gage untimely filed his habeas petition under § 2244(d). We
deny his application for a COA.5
Entered for the Court
Gregory A. Phillips
Circuit Judge
5 Brooks-Gage also moved to proceed on appeal without prepaying costs or
fees. We grant this motion.
Appellate Case: 21-7008 Document: 010110566500 Date Filed: 08/25/2021 Page: 7

-- 7 of 7 --