Ware v. Jordan, 10th Cir. (2002)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
OCT 18 2002
PATRICK FISHER
Clerk
DERRICK C. WARE,
Petitioner - Appellant,
v.
LENORA JORDAN,
No. 02-6016
D.C. No. CIV-00-1871-L
(W. D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *

Before KELLY, McKAY, and MURPHY, Circuit Judges.
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This order and judgment is not binding precedent, except under the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.
*
This case is before the court on Derrick C. Wares
pro se request for a
certificate of appealability (COA). Ware seeks a COA so he can appeal the

district courts dismissal of the habeas petition he filed pursuant to 28 U.S.C.
2254. See 28 U.S.C. 2253(c)(1)(A) (providing that no appeal may be taken
from the denial of a 2254 petition unless the petitioner first obtains a COA).
Ware was convicted in Oklahoma state court of robbery with firearms and
sentenced to 100 years imprisonment. Wares conviction was affirmed by the
Oklahoma Court of Criminal Appeals (OCCA) on August 31, 1994. A
corrected order was issued by the OCCA on December 2, 1994. Wares
application for post-conviction relief, filed with the state court on September 30,
1998, was denied.
Ware filed his 2254 petition on October 25, 2000. Because Wares state
conviction became final prior to the enactment of the Antiterrorism and Effective
Death Penalty Act (AEDPA), his 2254 petition should have been filed prior
to April 24, 1997.
See Adams v. LeMaster , 223 F.3d 1177, 1180 (10th Cir. 2000)
(reiterating that a state prisoner generally has one year from the effective date of
the AEDPA to file a 2254 habeas petition). On November 15, 2000, the district
court ordered Ware to show cause why the petition should not be dismissed as
Nothing in the record conclusively indicates whether Ware appealed the
denial of his application for post-conviction relief. The issue, however, is
irrelevant to the disposition of Wares 2254 petition.
1
-2-
untimely. Ware filed a response to the order to show cause arguing first that his
petition was timely filed pursuant to 28 U.S.C. 2241(d)(1)(D). Ware also
asserted that the limitations period should be equitably tolled because of
extraordinary circumstances and because he is actually innocent of the charges of
which he was convicted.
The magistrate judge prepared a comprehensive Report and
Recommendation addressing each of Wares arguments. The magistrate judge
first concluded that Wares 2254 petition was not timely under 18 U.S.C.
2244(d)(1)(D) because Ware was aware of the factual predicate for the claims
raised in the petition no later than March 1993. The magistrate judge also noted
that Wares state application for post-conviction relief could not toll the AEDPA
limitations period because it was filed after the limitations period expired. The
magistrate judge then considered Wares assertion that the limitations period
should be equitably tolled because Oklahoma prison officials took away his
legal work. The magistrate accepted Wares factual assertions as true and
noted that Wares 2254 petition was untimely even if the limitations period was
equitably tolled during the time he was denied access to his legal work. The
magistrate judge also considered the other bases for equitable tolling asserted by
Ware and concluded that none constituted an extraordinary circumstance that
-3-
warranted equitable tolling. Finally, Wares conclusory allegation of actual

innocence was insufficient to entitle him to equitable tolling.
After considering Wares objections to the Report and Recommendation,
the district court adopted the magistrates recommendation and dismissed Wares
petition. The court also denied Wares request for a COA. Before he is entitled
to a COA from this court, Ware must make a substantial showing of the denial
of a constitutional right. 28 U.S.C. 2253(c)(2). Ware may make this showing
by demonstrating the issues raised are debatable among jurists, a court could
resolve the issues differently, or that the questions presented deserve further
proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).
This court has reviewed Wares application for a COA, his appellate brief,
and the entire record on appeal. That
de novo review clearly demonstrates the
district courts dismissal of Wares 2254 petition as untimely is not deserving

of further proceedings or subject to a different resolution on appeal.
Accordingly, this court
denies Wares request for a COA for substantially those
reasons set forth in the magistrate judges Report and Recommendation dated
Wares application for a COA could be construed to contain an argument
that he should be allowed to proceed under 28 U.S.C. 2241 if he is foreclosed
from proceeding under 2254 because of the limitations period. We are
convinced, however, that this case presents no circumstances where the
limitations period raises serious constitutional questions and possibly renders the
habeas remedy inadequate and ineffective. Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998).
2
-4-
December 19, 2000 and the district courts order dated January 2, 2002, and
dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT *

This case is before the court on Derrick C. Wares

pro se request for a

certificate of appealability (COA). Ware seeks a COA so he can appeal the

warranted equitable tolling. Finally, Wares conclusory allegation of actual

de novo review clearly demonstrates the

district courts dismissal of Wares 2254 petition as untimely is not deserving

denies Wares request for a COA for substantially those

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