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William Shirley IV, a state inmate appearing pro se, appealed the district court’s denial of his habeas corpus petition as time-barred. The district court concluded there was no basis for statutory or equitable tolling of the Antiterrorism and Effective Death Penalty Act’s one-year limitation period and dismissed the petition as untimely. The 10th Circuit Court of Appeals denied a certificate of appealability and dismissed the appeal.
Shirley pled guilty in Oklahoma state court to first-degree manslaughter in 2018 and was sentenced to 25 years. After unsuccessful attempts at obtaining state post-conviction relief, Shirley filed his federal petition. He alleged his conviction was devoid of due process and based on the Supreme Court’s 2020 ruling in McGirt v. Oklahoma, Oklahoma lacked jurisdiction to prosecute him under the Major Crimes Act.
The magistrate judge recommended the petition be dismissed as untimely under the one-year limitation period as Shirley hadn’t shown a basis for statutory or equitable tolling. Upon consideration of Shirley’s objections and applying for de novo review, the district court adopted the recommendation and dismissed the petition.
Shirley asked the 10th Circuit to consider his “[j]urisdictional [c]laim” de novo. But a COA is a prerequisite to an appellate review. In this case, to obtain a COA after a district court has dismissed a filing on procedural grounds, Shirley must show 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,” according to the Supreme Court’s 2000 decision in Slack v. McDaniel.
A state inmate seeking habeas relief must file in federal court within one year “from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” or “the date on which the constitutional right asserted . . . has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” the opinion noted. The one-year limitations period may be tolled pending the disposition of “a properly filed application for State post-conviction or other collateral review.”
Following the entry of his guilty plea, Shirley was sentenced on Sept. 25, 2018. He didn’t move to withdraw his plea or pursue a direct appeal. His conviction became final when the time to pursue a direct appeal expired on Dec. 24, 2018. Because Shirley didn’t file his federal habeas petition until December 2022, four years after his conviction became final, his petition was untimely. Although Shirley pursued state post-conviction relief, it was two years after his state conviction became final, so statutory tolling didn’t apply.
Shirley asserted the limitations period should proceed from the date the Supreme Court decided McGirt. In Shirley’s view, the Supreme Court implicitly indicated McGirt’s jurisdictional ruling had a retroactive effect “but there is at least one fatal flaw to this argument: McGirt announced no new constitutional right,” according to a January 10th Circuit decision in Pacheco v. El Habti.
The 10th Circuit determined Shirley’s petition was time-barred and lacked the basis for statutory tolling or application of U.S. Code 2244(d)(1)(C). Although Shirley argued equitable tolling applied in his objections to the magistrate judge’s report and recommendation, he didn’t raise it on appeal so the argument was waived.
The 10th Circuit denied a COA and dismissed the appeal. The 10th Circuit also denied Shirley’s motion for leave to proceed without the prepayment of costs or fees.