UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

SHAWN SHINTON,

 Petitioner - Appellant,

v.

TIM WILKINSON,

 Respondent - Appellee.

No. 14-6035

 (D.C. No. 5:13-CV-01014-D)

(W.D. Oklahoma)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, McKAY, and MATHESON, Circuit Judges. 

 

 Defendant Shawn Shinton, an Oklahoma prisoner, filed an application for relief 

under 28 U.S.C. § 2254 in the United States District Court for the Western District of 

Oklahoma. The district court denied the application as untimely. Defendant now seeks a 

certificate of appealability (COA) from this court to pursue an appeal. See 28 U.S.C. 

§ 2253(c)(1)(A) (requiring a COA to appeal denial of § 2254 application). We deny a 

COA and dismiss the appeal. 

I. BACKGROUND 

Defendant was convicted by an Oklahoma jury of second-degree murder on 

April 8, 1994. He was sentenced to life in prison with the possibility of parole. The 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
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Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction on January 18, 

1996. Defendant did not petition for a writ of certiorari in the United States Supreme 

Court. On August 17, 2011, he filed a state application for postconviction relief, which 

was denied. He appealed to the OCCA, which affirmed the denial on September 26, 

2012. 

On September 19, 2013, Defendant filed a pro se application for relief in the 

district court under § 2254, arguing (1) that his Fourteenth Amendment rights were 

violated by admission of his involuntary confession at trial, (2) that his confession was 

the result of mental and emotional duress, and (3) that a law-enforcement witness 

testified falsely at his trial. We proceed to review the timeliness of the application. 

II. DISCUSSION 

A COA will issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a 

demonstration that . . . includes showing 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.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other 

words, the applicant must show that the district court’s resolution of the constitutional 

claim was either “debatable or wrong.” Id. If the application was denied on procedural 

grounds, the applicant faces a double hurdle. Not only must the applicant make a 

substantial showing of the denial of a constitutional right, but he must also show “that 
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jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling.” Id. “Where 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. 

A prisoner bringing a petition under § 2254 must file the petition within one year 

of the last of the following dates: 

(A) the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such review; 

(B) the date on which the impediment to filing an application created by 

State action in violation of the Constitution or laws of the United States is 

removed, if the applicant was prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was initially 

recognized by the Supreme Court, if the right has been newly recognized 

by the Supreme Court and made retroactively applicable to cases on 

collateral review; or 

(D) the date on which the factual predicate of the claim or claims presented 

could have been discovered through the exercise of due diligence. 

28 U.S.C. § 2244(d)(1). A prisoner must qualify under § 2244(d)(1)(A), filing his 

petition within one year of the time his conviction became final, unless he can invoke a 

statutory extension under another provision of § 2244 or equitable tolling. See Clark v. 

Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). 

 The district court correctly calculated that Defendant’s conviction became final on 

April 17, 1996, ninety days after the OCCA denied his appeal, when his time to file a 

petition for certiorari with the United States Supreme Court ran out. The court went on to 

consider whether he was entitled to a statutory extension under § 2244(d)(1)(B) or (D). 
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Defendant claimed that § 2244(d)(1)(B) was applicable because he alleged that he was 

not able to obtain transcripts of his trial until 2011; the district judge ultimately found that 

he was in possession of his trial transcripts by January 14, 2011. And Defendant 

suggested that the onset of the one-year limitations period would be delayed about a 

month beyond that by applying § 2244(d)(1)(D) because a law-enforcement officer 

executed an affidavit helpful to his claims on February 11, 2011. In addition, Defendant 

could take advantage of tolling of the limitations period from August 17, 2011, to 

September 26, 2012, while his state application for postconviction relief was pending. 

See 28 U.S.C. § 2244(d)(2). 

 But even if we give Defendant the benefit of these statutory provisions, the filing 

of his § 2254 application on September 19, 2013, came too late. The filing was more 

than 31 months after execution of the officer’s affidavit, and his state postconviction 

application was pending for less than 14 months. 

 There remains the possibility of equitable tolling, but equitable tolling is granted 

“only in rare and exceptional circumstances.” See Coppage v. McKune, 534 F.3d 1279, 

1280 (10th Cir. 2008) (internal quotation marks omitted). And, as the district court ruled, 

Defendant provided no facts to support such tolling. 

 In this court Defendant addresses only the merits of his claims. He makes no 

arguments why the district court’s timeliness ruling was incorrect. We conclude that no 

reasonable jurist could find it debatable that the district court was correct in its procedural 

ruling.
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III. CONCLUSION 

We DENY the application for a COA and DISMISS the appeal. We DENY 

Defendant’s motion to proceed in forma pauperis. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge