No. 5:18-CV-00668-C) W.D. Okla.
HOLMES, MURPHY, and CARSON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
MICHAEL R. MURPHY, CIRCUIT JUDGE
matter is before the court on Daniel Gene Mosley's pro se
request for a certificate of appealability ("COA").
Mosley seeks a COA so he can appeal the district court's
dismissal, on timeliness grounds, of his 28 U.S.C. §
2254 habeas petition. See 28 U.S.C. §
2253(c)(1)(A) (providing no appeal may be taken from "a
final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
State court" without first obtaining a COA);
id. § 2244(d)(1) (setting out a one-year
statute of limitations on § 2254 petitions running from
the date on which the conviction became final). Because
Mosley has not "made a substantial showing of the denial
of a constitutional right," id. §
2253(c)(2), this court denies his request
for a COA and dismisses this appeal.
was found guilty in Oklahoma state court of trafficking in
illegal drugs after a former conviction of two or more
felonies; he was sentenced to imprisonment for life. After
exhausting his state court remedies, Mosley filed the instant
§ 2254 habeas petition. Mosley conceded his petition was
untimely, but claimed he was entitled to equitable tolling.
In a well-analyzed report and recommendation, a magistrate
judge determined Mosley had not demonstrated the kind of
extraordinary circumstances that would entitle him to
equitable tolling. See Al-Yousif v. Trani, 779 F.3d
1173, 1179 (10th Cir. 2015) (holding that "[e]quitable
tolling is a rare remedy to be applied in unusual
circumstances" (quotation omitted)). On de novo review,
the district court adopted the magistrate judge's report
and recommendation and dismissed Mosley's § 2254
habeas petition. Mosley seeks a COA so he can appeal the
district court's disposition.
granting of a COA is a jurisdictional prerequisite to
Mosley's appeal from the dismissal of his § 2254
petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, he must make "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he must demonstrate 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." Miller-El,
537 U.S. at 336 (quotations omitted). When a district court
dismisses a § 2254 motion on procedural grounds, a
petitioner is entitled to a COA only if he shows both that
reasonable jurists would find it debatable whether he had
stated a valid constitutional claim and debatable whether the
district court's procedural ruling was correct. Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating
whether Mosley has satisfied his burden, this court
undertakes "a preliminary, though not definitive,
consideration of the [legal] framework" applicable to
each of his claims. Miller-El, 537 U.S. at 338.
Although Mosley need not demonstrate his appeal will succeed
to be entitled to a COA, he must "prove something more
than the absence of frivolity or the existence of mere good
faith." Id. (quotations omitted). As a further
overlay on this standard, we review for abuse of discretion
the district court's decision that Mosley is not entitled
to have the limitations period set out in § 2244(d)(1)
equitably tolled. See Burger v. Scott, 317 F.3d
1133, 1141 (10th Cir. 2003).
undertaken a review of Mosley's appellate filings, the
magistrate judge's report and recommendation, the
district court's order of dismissal, and the entire
record before this court pursuant to the framework set out by
the Supreme Court in Miller-El and Slack,
we conclude Mosley is not entitled to a COA. The district
court's resolution of Mosley § 2254 motion is not
deserving of further proceedings or subject to a different
resolution on appeal. In so concluding, there is no need for
this court to repeat the cogent and convincing analysis set
out in the magistrate judge's report and recommendation.
See Buck v. Davis, 137 S.Ct. 759, 773-74 (2017)
(holding that the process of resolving whether a petitioner
is entitled to a COA should not devolve into a determination
of the merits). Accordingly, this court
DENIES Mosley's request for a COA and
DISMISSES this appeal.
Given this determination, it was
unnecessary for the district court to further determine
whether each of the claims set out in Mosley's habeas
petition was barred by Stone v. Powell, 428 U.S.
465, 494 (1976) (holding that as long as the state provided
the petitioner an "opportunity for full and fair
litigation of a Fourth Amendment claim," a federal court
may not grant habeas relief on such a claim). A review of the
record certainly appears to indicate Stone would
apply. This court need not resolve that issue given our
determination, infra, that ...