Claybrook v. Oklahoma Department, 10th Cir. (2007)

FILED
United States Court of Appeals

Tenth Circuit
October 10, 2007
UNITED STATES CO URT O F APPEALS

Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
M A RK LY N N CLA Y BR OO K ,
Petitioner - Appellant,
v.
No. 06-5112
N.D. Okla.
O K LA H OMA D EPA RTM EN T OF

CO RR ECTIONS,
(D.C. No. 02-CV-0724-CVE-FHM )
Respondent - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY

A ND DISM ISSIN G A PPLIC ATIO N
Before H E N RY, BR ISC OE, and OBRIEN, Circuit Judges.
M ark Lynn Claybrook, a state prisoner proceeding pro se, 1 filed a 28 U.S.C.
2254 petition for writ of habeas corpus. The district court denied the petition as
well as a certificate of appealability (COA). Claybrook applies for COA with this
Court. See 28 U .S.C . 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). W e deny a C OA
and dismiss his application.
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
Background
Claybrook was charged in Oklahoma state court with rape in the second
degree (Count 1), two counts of sexual battery (Counts 2 & 3) and rape by
instrument (Count 4). He was convicted by a jury of Counts 2, 3 & 4 and
sentenced to five years imprisonment on Counts 2 & 3 and fifteen years
im prisonment on C ount 4, w ith the sentences ordered to run consecutively. He
appealed from those convictions to the Oklahoma Court of Criminal Appeals
(OCCA) raising five propositions of error. 2 His convictions were affirmed on
direct appeal and his subsequent petition for rehearing was denied. See
Claybrook v. State, No. F-2000-1014 (O kla. Crim. App. M ay 11, 2001).
Claybrook did not file a petition for certiorari with the United States Supreme
Court.
On April 20, 2004, Claybrook filed a petition for post-conviction relief in
the District Court of Tulsa County, Oklahoma. His petition was denied and the
OCCA dismissed his following appeal as untimely filed. On September 23, 2005,
Claybrook filed a second application for post-conviction relief raising five claims.
The district court noted that the first four propositions were the same as were
Claybrook claimed: (1) the States evidence disproved the intent element
of Count 2; (2) Count 3 was duplicitous and Claybrook was denied a unanimous
verdict because the charge set forth separate methods of committing the offense;
(3) the variance between the allegations in Count 4 and the proof at trial denied
Claybrook due process; (4) the evidence was insufficient to support the conviction
on Count 4; and (5) the States closing argument denied Claybrook a fair trial.
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raised in the first petition, and thus w ere barred by res judicata. Because his fifth
claim was not raised in his first application, the district court deemed it w aived.
The OCCA affirmed the district courts order.
On September 19, 2002, prior to filing his State motions for post-conviction
relief, Claybrook, represented by counsel, filed a 2254 petition for a writ of
habeas corpus raising the same issues raised in his direct appeal. 3 On July 30,
2004, Claybrooks counsel filed a motion to withdraw which was granted on
August 2, 2004. On M arch 23, 2006, Claybrook entered his appearance pro se
and moved to amend his habeas petition to add two new grounds for relief
ineffective assistance of appellate counsel 4 and double jeopardy alleging these
issues were considered and rejected by the state courts during his post-conviction
proceedings. On M ay 15, 2006, Claybrook filed a petition for writ of mandamus
with this Court seeking an order requiring the district court to rule on his motion
to amend. W e denied this request but noted that until Claybrook filed his motion
to amend, there had been no activity in the case since August 2004.
3
Pursuant to 28 U.S.C. 2244(d)(1)(A), a 2254 habeas corpus petition

must be filed within one year from the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such
review. Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2004). Claybrooks
conviction became final on October 23, 2001.
4
To the extent Claybrook is claiming his post-conviction or federal habeas

attorneys were ineffective, such claim is precluded by 28 U.S.C. 2254(i). (The
ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.).
-3-
On M ay 30, 2006, the district court issued an order denying Claybrooks

motion to amend and his habeas petition. It concluded the motion to amend
contained new and separate claims that did not relate back to the original petition.
See Fed. R. Civ. P. 15(c). M oreover, because the new claims were filed long after
the one year statute of limitations and Claybrook made no argument for statutory
or equitable tolling, the district court determined the new claims w ere untimely
filed. 5 See 28 U.S.C. 2244(d)(1).
As to Claybrooks remaining claims, the court determined they were
properly exhausted, but denied relief because the state courts adjudication did
not involve[] an unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States, or an unreasonable
determination of the facts as presented in the State court proceeding. See 28
U.S.C. 2254(d).
Claybrook filed a pro se notice of appeal and thereafter, the district court
denied a CO A. Claybrook filed a request for a COA with this Court alleging not
only that the district court erred in denying his request to amend his 2254
petition and in its conclusions on the remainder of his claims, but also
maintaining the courts decision was due to judicial bias.
Certificate of Appealability
5
Claybrooks state petitions for post-conviction relief did not toll the
limitations period because they were not filed until after the limitations period
had expired. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
-4-
A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Claybrook
makes a substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). To make this showing, he must establish that reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] 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)
(quotations omitted). Insofar as the district court dismissed his habeas petition on
procedural grounds, Claybrook must demonstrate both that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and 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 the 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. W e review the district courts factual findings for clear error and its
legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.
2001).
In his application for a COA, Claybrook initially contends the district
courts decision denying his 2254 petition was the result of judicial bias derived
from its displeasure with his request for mandamus and his following letter to the
-5-
Tenth Circuit. W e disagree. [J]udicial rulings alone almost never constitute a

valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540,
555 (1994). Thus, adverse rulings cannot in themselves form the appropriate
grounds for disqualification. United States v. Nickl, 427 F.3d 1286, 1298 (10th
Cir. 2005) (quoting Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)).
Claybrooks evidence of bias consists solely of the timing and content 6 of the
district courts adverse decision. His complaint as to timing is ironic, given that
the court was merely complying with his request to render an immediate decision
in his case. In any event, neither the timing nor the content of the courts order is
sufficient to maintain his claim of bias.
Claybrook next challenges the denial of his motion to amend his 2254
petition. He relies on Rule 9(a) of the Rules Governing Habeas Corpus Cases
Under Section 2254, which provides that a delayed habeas petition can be
dismissed only if the delay prejudices the state. He also cites to Lonchar v.
Thom as, where the Court stated: Dismissal of a first federal habeas petition is a
particularly serious matter, for that dismissal denies the petitioner the protections
of the Great W rit entirely, risking injury to an important interest in human
liberty. 517 U.S. 314, 324 (1996). Claybrook claims the district court erred
Claybrook claims another indication of the district courts bias was its
misquoting the testimony of the States expert. To the contrary, the record
reveals the expert was correctly quoted as stating the drug Rohypnol can be used
as a preoperative anesthesia. (R. Doc. 3 at 106.)
-6-
because it denied his motion to amend without finding prejudice to the state.
Claybrook fails to recognize Rule 9(a) was deleted in 2004 because it is
unnecessary in light of the one-year statute of limitations. See Rules Governing
Habeas Corpus Cases Under Section 2254 Cases, Rule 9, Advisory Committee
Notes 2004. He also ignores Lonchars clear deference to the rules that
Congress has fashioned concerning habeas. M iller v. M arr, 141 F.3d 976, 978
(10th Cir. 1998).
Claybrook further presents no basis for the application of statutory or
equitable tolling to his proposed additional claims except to assert he is actually
innocent. However, he offers no evidence to support this assertion that was not
presented at trial. His claim is not actual innocence, but theoretical innocence. It
rests on his allegations of insufficiency of the evidence, an issue carefully
reviewed and rejected by the state courts and the district court. Thus, the
propriety of the district courts denial of his motion to amend is not reasonably
debatable. Nor do we find the OCCAs decision addressing his remaining claims
contrary to or an unreasonable application of the law or facts.
Because Claybrook has failed to make a sufficient showing that he is
entitled to a COA, we D EN Y his request and DISM ISS his application.
ENTERED FOR THE COURT
Terrence L. OBrien
Circuit Judge
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Claybrook v. Oklahoma Department, 10th Cir. (2007)

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FILED

United States Court of Appeals

October 10, 2007

UNITED STATES CO URT O F APPEALS

O K LA H OMA D EPA RTM EN T OF

(D.C. No. 02-CV-0724-CVE-FHM )

OR DER DENY ING CERTIFICATE O F APPEALABILITY

Before H E N RY, BR ISC OE, and OBRIEN, Circuit Judges.

Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,

Pursuant to 28 U.S.C. 2244(d)(1)(A), a 2254 habeas corpus petition

To the extent Claybrook is claiming his post-conviction or federal habeas

On M ay 30, 2006, the district court issued an order denying Claybrooks

A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Tenth Circuit. W e disagree. [J]udicial rulings alone almost never constitute a

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