Smith v. Ray, 10th Cir. (2006)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
July 26, 2006

Elisabeth A. Shumaker
Clerk of Court
D EA N D RE FR AN K LIN SM ITH,
Petitioner - A ppellant,
v.
No. 06-5047
N. D. Oklahoma
C HA RLES R AY ,
(D.C. No. 05-CV-0151-CVE-PJC)
Respondent - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Deandre Franklin Smith was convicted in Oklahoma state court of several

criminal offenses and sentenced to 25 years imprisonment. He appealed his
conviction to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed
his conviction and sentence on August 25, 2003. M r. Smith apparently did not
seek certiorari review in the United States Supreme Court. On August 2, 2004,
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
M r. Smith filed an application for postconviction relief in state district court,

which denied relief on September 8, 2004. He appealed to the OCCA, which
declined jurisdiction and dismissed the appeal as untimely on November 8, 2004.
On M arch 18, 2005, M r. Smith filed a habeas application under 28 U.S.C.
2254 in the United States District Court for the Northern District of Oklahoma.
The district court dismissed his application, ruling that M r. Smith had not
complied w ith the one-year statute of limitations established by the A ntiterrorism
and Effective Death Penalty Act of 1996 (AEDPA ), 28 U.S.C. 2244(d), and that
he was not entitled to equitable tolling of the limitations period. The district
court also denied a certificate of appealability (COA), see 28 U.S.C. 2253(c)(1)
(requiring COA). M r. Smith now seeks a COA from this court, which we deny.
A COA will issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This standard
requires a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district courts resolution of the constitutional claim was either
debatable or wrong. Id. If the application was denied on procedural grounds,
the applicant faces a double hurdle. Not only must the applicant make a
-2-
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. W here a plain procedural bar is present and
the district court is correct to invoke it to dispose of a case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further. Id.
On appeal M r. Smith does not challenge the district courts determination
that he had failed to file his 2254 application within AEDPA s one-year
limitations period. He does, however, challenge the district courts ruling on
three other grounds.
First, M r. Smith argues that he was improperly denied the six hours of
weekly access to legal materials to w hich he claims to be entitled under Lewis v.
Casey, 518 U .S. 343 (1996). But he did not raise this claim in district court, so
we will not consider it. See Simmat v. U. S. Bureau of Prisons, 413 F.3d 1225,
1240 (10th Cir. 2005) (we will not address issues raised for the first time on
appeal).
Second, M r. Smith argues that inadequacies in the state postconviction
proceedings resulted in a denial of due process. Again, however, he did not raise
this claim in district court, so we will not consider it. See id. In any event, he
fails to explain how these inadequacies caused his federal application under
2254 to be untimely.
-3-
Third, he argues that the limitations period should be equitably tolled

because during his post-conviction appeal he had only a 30-day window to
perfect an appeal, at which time he was subject to suffer unfor[e]seeable facility
lock-downs, shake-downs, library closings and equipment failure. Aplt. Br. at
16. He appears to be arguing that he was not at fault for filing an untimely
postconviction appeal to the OCCA. This untimeliness reduced the amount of
time during which the limitations period was statutorily tolled by his state
postconviction proceedings. The district court rejected M r. Smiths argument that
the limitations period should be tolled during the pendency of his postconviction
proceedings, from August 2 until November 8, 2004, the date the OCCA
dismissed his postconviction appeal, because the untimely appeal was not
properly filed as required by AEDPA, 28 U.S.C. 2244(d)(2); see Hoggro v.
Boone, 150 F.3d 1223, 1226 n.4 (10th Cir. 1998) (no tolling of the time during
which [the defendant] appealed the denial of his application for post-conviction
relief because that appeal was untimely. Section 2244(d)(2) requires a court to
subtract time only for the period when the petitioners properly filed postconviction application is being pursued.). Instead, the court ruled that the
limitations period was tolled only from August 2 until October 8, 2004, thirty
days after the state district court denied postconviction relief. But even if we
exercised equitable powers to treat M r. Smiths appeal to the OCCA as timely
thus crediting him with tolling until the OCCA dismissed his appeal on November
-4-
8, 2004, rather than until only October 8, 2004 his 2254 application would
still be untimely. The district court calculated that AEDPA s limitations period
expired on January 29, 2005. W ith the addition of 31 days (O ctober 8 to
November 8), the AEDPA limitations period would have expired on M arch 1,
2005. M r. Smiths 2254 application was received for filing by the district court
on M arch 18, 2005. The earliest date one could attribute to the application is the
date entered for the Declaration Under Penalty of Perjury at the end of the
application form, which is M arch 4, 2005. Thus, the application was at least three
days late even if M r. Smiths state postconviction appeal w ere considered timely.
No reasonable jurist could dispute the district courts ruling that M r. Smith is not
entitled to relief on the ground of equitable tolling.
W e DENY a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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Smith v. Ray, 10th Cir. (2006)

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F I L E D

United States Court of Appeals

July 26, 2006

(D.C. No. 05-CV-0151-CVE-PJC)

OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.

Deandre Franklin Smith was convicted in Oklahoma state court of several

M r. Smith filed an application for postconviction relief in state district court,

Third, he argues that the limitations period should be equitably tolled

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