UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

TYRONE L. JOHNSON,

Petitioner - Appellant, 

v. 

CHAD MILLER, Warden, 

Respondent - Appellee. 

No. 13-5005 

(D.C. No. 4:12-CV-00331-GKF-TLW) 

(N.D. Okla.) 

ORDER DENYING 

CERTIFICATE OF APPEALABILITY 

AND DISMISSING APPEAL

Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges. 

Tyrone Johnson, an Oklahoma state prisoner proceeding pro se1

 and in forma 

pauperis, wants to appeal from the denial of his 28 U.S.C. § 2254 habeas petition which 

was dismissed as time-barred. The district court denied a requested certificate of 

appealability (COA). Because Johnson has not “made a substantial showing of the denial 

of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we also deny his renewed request 

for a COA. 

 

1

 We liberally construe Johnson’s pro se filings. See Ledbetter v. City of Topeka, 

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 22, 2013

Elisabeth A. Shumaker 

Clerk of Court
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Johnson was convicted in 1993 on four counts of first-degree murder and 

sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals (OCCA) 

affirmed his conviction on September 7, 1995. On November 10, 1997, he filed a 

petition for post-conviction relief in state court. The trial court denied the petition and 

the OCCA affirmed on February 10, 1998. On February 8, 1999, Johnson filed a § 2254 

petition in federal court which he voluntarily dismissed a month later. Thirteen years 

later, on February 13, 2012, he filed a petition for post-conviction relief with the OCCA, 

which declined jurisdiction. He filed the present § 2254 petition on June 11, 2012. 

Not surprisingly, the district court found the petition time-barred. It concluded 

Johnson’s conviction became final on December 6, 1995, the date the ninety-day time 

period during which he could have, but did not file a petition for a writ of certiorari with 

the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th 

Cir. 2001) (holding “a petitioner’s conviction is not final and the one-year limitation 

period for filing a federal habeas petition does not begin to run until--following a decision 

by the state court of last resort--after the United States Supreme Court has denied review, 

or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with 

the Supreme Court has passed”) (quotation marks omitted). Because his conviction 

became final prior to the effective date of the Antiterrorism and Effective Death Penalty 

Act (AEDPA), April 24, 1996, Johnson had until April 24, 1997, in which to file his 

federal habeas petition. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). He 

did not file before the critical date. The district court concluded Johnson’s state petitions 
- 3 - 

for post-conviction relief did not toll the limitations period under 28 U.S.C. § 2244(d)(2) 

because they were not filed until after the limitations period had expired. Id. at 1142-43. 

The court also concluded Johnson was not entitled to equitable tolling. Relevant 

here, it determined he had not substantiated his factual innocence claim and his alleged 

mental retardation did not equitably toll the limitations period because even if it 

constituted an extraordinary circumstance he had not shown diligence. See Woodward v. 

Cline, 693 F.3d 1289, 1294 (10th Cir.) (stating a petitioner who asserts actual innocence 

as grounds for equitable tolling “must establish that, in light of new evidence, it is more 

likely than not that no reasonable juror would have found the prisoner guilty beyond a 

reasonable doubt”) (quotation marks omitted), cert. denied 133 S. Ct. 669 (2012); Marsh 

v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[E]quitable [tolling] is only available 

when an inmate diligently pursues his claims and demonstrates that the failure to timely 

file was caused by extraordinary circumstances beyond his control.”) (emphasis added). 

 A COA is a jurisdictional prerequisite to our review of a petition for a writ of 

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA 

“only if the applicant has made a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). Because the district court’s ruling rests on procedural 

grounds, Johnson 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 
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Johnson does not contest the court’s statute of limitations analysis other than to 

argue he is entitled to equitable tolling because he is factually innocent and a slow 

learner. Because no jurist of reason could reasonably debate the correctness of the 

district court’s decision, we DENY the request for a COA and DISMISS this matter.2

 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge 

 

2

 In the district court, Johnson made a conclusory reference to an intervening 

change in the law entitling him to equitable tolling. He expounds on that claim in his 

COA application where he relies on Cooper v. Oklahoma, 517 U.S. 348 (1996). In 

Cooper, the Supreme Court struck down Oklahoma’s requirement for defendants to prove 

their incompetence by clear and convincing evidence because that standard 

impermissibly allowed a defendant to be tried even though it is more likely than not that 

he is incompetent. Id. at 350, 369. Cooper does not help him. It was decided in April 

1996, prior to the expiration of the limitations period.