Jones v. Addison

Filing 920100709

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT

J u l y 9, 2010

E l i s a b e t h A. Shumaker C l e r k of Court

J A M E S JOHNNY JONES, P e t i t i o n e r - Appellant, v. M I C H A E L K. ADDISON, Warden, R e s p o n d e n t - Appellee. N o . 10-6059 ( D . C . No. 5:09-CV-01231-R) ( W . D . Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY B e f o r e KELLY, McKAY, and LUCERO, Circuit Judges. P e t i t i o n e r - A p p e l l a n t James Johnny Jones, an Oklahoma state inmate p r o c e e d i n g pro se, seeks a certificate of appealability ("COA") allowing him to a p p e a l the district court's treatment of his hybrid 28 U.S.C. §§ 2241 and 2254 h a b e a s petition: the court denied the § 2241 petition and dismissed the § 2254 p e t i t i o n . Mr. Jones fails to make "a substantial showing of the denial of a c o n s t i t u t i o n a l right." 28 U.S.C. § 2253(c)(2). Therefore, we deny his request for a COA, and dismiss the appeal. Mr. Jones's federal habeas petition arises from his state application to

p u r s u e an out-of-time appeal. R. 10-11. * According to Mr. Jones, his state a p p l i c a t i o n claimed that he could not pursue post-conviction relief in a timely f a s h i o n because prescription medication incapacitated him for nearly seven years. Id. at 11-12. The state district court denied Mr. Jones's application, and s a n c t i o n e d him 720 earned good time credits for filing a frivolous claim. Id. at 4, 1 9 . The Oklahoma Court of Criminal Appeals affirmed. Id. at 19. The federal ma g i s t r a t e judge understood Mr. Jones's habeas petition as challenging both the d e n i a l of the state application and the sanction, and treated it as both a § 2241 p e t i t i o n challenging the execution of his sentence and a § 2254 challenge to his c o n v i c t i o n . Id. at 20, 23-25. The magistrate recommended the denial of the § 2 2 4 1 petition, finding a reasonable basis for the sanction, and the dismissal of the § 2254 petition, deeming it time-barred. Id. at 22-25. The district court adopted t h e magistrate's report, denied the § 2241 petition, and dismissed the § 2254 p e t i t i o n . Id. at 33-34. F o r the most part, Mr. Jones's COA application and appellate brief present s u b s t a n t i v e challenges to his conviction which were missing from his habeas p e t i t i o n . COA Application 2-3. Generally, we do not review issues presented for t h e first time on appeal, and Mr. Jones gives us no reason to do so here. See F a i r c h i l d v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009).

Mr. Jones has supplied neither his state court application nor the order d i s p o s i n g of it. Therefore, we rely on his representations.
-2-

*

M r . Jones's application presents one issue appropriate for our review: he a r g u e s that his § 2254 petition was not subject to dismissal as a second or s u c c e s s i v e petition. COA Application 3. A COA should not issue unless "jurists o f reason would find it debatable whether the petition states a valid claim of the d e n i a l of a constitutional right and . . . jurists of reason would find it debatable w h e t h e r the district court was correct in its procedural ruling." Slack v. M c D a n i e l , 529 U.S. 473, 484 (2000). Although the magistrate labeled Mr. J o n e s ' s petition "successive," R. 24, the district court dismissed it as time barred, i d . at 34. The magistrate judge's reasoning was sound: Mr. Jones's previous h a b e a s petition was time barred when it was filed more than seven years ago. His c u r r e n t petition is still time barred, unless he can show extraordinary c i r c u ms t a n c e s for equitable tolling. Holland v. Florida, -- S. Ct. --, 2010 WL 2 3 4 6 5 4 9 , at *12 (June 14, 2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1 9 9 8 ) . Finding Mr. Jones's alleged mental incapacity to be "clearly without me r i t , " the magistrate judge found his petition ineligible for equitable tolling. R. 2 4 - 2 5 . In light of his frequent litigation since the statute of limitations began r u n n i n g , a reasonable jurist would not debate that Mr. Jones's claim is time barred a n d ineligible for equitable tolling.

-3-

W e DENY a COA, DENY appellant's motion seeking leave to proceed in f o r m a pauperis as moot, and DISMISS the appeal. E n t e r e d for the Court

P a u l J. Kelly, Jr. C i r c u i t Judge

-4-