UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ROBERT V. WONSCH, 

 Petitioner - Appellant, 

v. 

SCOTT CROW, 

 Respondent - Appellee. 

No. 22-6040 

(D.C. No. 5:21-CV-00826-PRW) 

(W.D. Okla.) 

_________________________________ 

ORDER

_________________________________ 

Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. 

_________________________________ 

Robert V. Wonsch, an Oklahoma prisoner proceeding pro se, has moved for a 

certificate of appealability (COA) so he may appeal the district court’s denial of his 

28 U.S.C. § 2254 petition. We previously denied this motion by order dated 

November 3, 2022. In an order filed earlier today, however, we granted respondent 

Scott Crow’s motion for panel rehearing, and we vacated that November 3 order. For 

the reasons set forth below, we now grant a COA, vacate the underlying district court 

order, and remand to the district court for further proceedings. 

I. BACKGROUND & PROCEDURAL HISTORY 

In December 2018, Wonsch received a sentence totaling seventy years for 

eleven offenses of which he had been convicted after a jury trial in Oklahoma state 

court. He appealed to the Oklahoma Court of Criminal Appeals (OCCA), which 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 30, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 1
2 

affirmed on April 23, 2020. Over the next year or so, Wonsch continued to seek 

relief from that conviction through various motions filed in the Oklahoma courts, and 

he believed he had exhausted his state-court remedies as of July 21, 2021 (the date on 

which the state trial court entered an order denying one of those motions). 

Wonsch filed a 28 U.S.C. § 2254 petition in Oklahoma federal court on August 

20, 2021. In response, Crow filed two pre-answer motions to dismiss. (Crow is only 

the nominal respondent, so from this point forward we will refer to the party 

opposing Wonsch’s petition as “the State.”) The State’s first motion asserted that 

Wonsch had failed to file within the statute of limitations for § 2254 petitions. The 

second motion argued that Wonsch had failed to exhaust his state-court remedies. 

The district court only reached the merits of the first motion. The court held 

that § 2254’s one-year filing window began to run on July 23, 2020, and so expired 

on July 23, 2021, about a month before Wonsch filed his petition. The court made 

that calculation by taking the date of the OCCA’s direct-appeal decision (April 23, 

2020), and adding ninety days (the time allotted by U.S. Supreme Court Rule 13.1 for 

filing a certiorari petition). See 28 U.S.C. § 2244(d)(1)(A) (providing that a § 2254 

petitioner must file that petition within one year from the date the conviction 

becomes “final,” meaning, in this instance, the “conclusion of direct review or the 

expiration of the time for seeking such review”); Gonzalez v. Thaler, 565 U.S. 134, 

150 (2012) (holding that if a petitioner does not seek certiorari, the conviction 

becomes final when the time for pursuing that relief expires). That comes out to 

July 22, 2020. The district court then held that the one-year filing window began the 

Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 2
3 

following day, July 23. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 

2011) (calculating the first day of the § 2254 filing window as the day after the 

conviction becomes final). Thus, Wonsch needed to file his § 2254 petition on or 

before July 23, 2021, and he did not. 

The district court examined various potential grounds for excusing Wonsch’s 

untimeliness and found that none of them applied. Thus, it granted the State’s 

motion to dismiss the § 2254 petition as untimely, and it denied the State’s other 

motion (regarding exhaustion) as moot. 

Wonsch then moved for a COA from this court. Wonsch’s motion focused on 

reasons to excuse his untimeliness. He did not argue that the district court erred 

when it calculated the various relevant dates. We found that Wonsch had not raised a 

debatable argument that his untimeliness should be excused, and so we denied a 

COA. 

The State now tells us that it believes it misled the district court about the 

proper date calculation. Counsel for the State says he recently became aware of a 

March 19, 2020, miscellaneous order from the United States Supreme Court 

prompted by the onset of the COVID-19 pandemic. This order lengthened the 

deadline to file a certiorari petition for an additional sixty days (i.e., for a total of 150 

days). See Order at 1, 589 U.S. ___ (U.S. Mar. 19, 2020). That order remained in 

effect until July 19, 2021. See Order at 1, 594 U.S. ___ (U.S. July 19, 2021). 

Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 3
4 

II. ANALYSIS 

We commend the State for bringing this matter to our attention. The extra 

sixty days potentially has an important effect here. Again, the OCCA issued its 

direct-appeal decision on April 23, 2020, when the Supreme Court’s extension was in 

effect. Applying that extension, Wonsch’s certiorari deadline was September 21, 

2020, meaning his § 2254 filing window opened on September 22, 2020, and closed 

one year later. Wonsch filed his § 2254 petition on August 20, 2021, before that 

window closed. 

In this light, we believe “jurists of reason would find it debatable whether the 

district court was correct in its [timeliness] ruling.” Slack v. McDaniel, 529 U.S. 

473, 484 (2000). A COA is therefore appropriate. But we need not go on to rule that 

the State’s new calculation is correct. The State never brought the Supreme Court’s 

extension order to the district court’s attention, and we believe the district court 

should receive the first opportunity to decide if and how it applies. 

III. CONCLUSION 

We grant a COA. Further, we vacate the district court’s February 17, 2022, 

order, and we remand this matter to the district court for further proceedings 

consistent with this order. Given this disposition, Wonsch’s petition for rehearing is 

denied as moot. The mandate shall issue forthwith. 

Entered for the Court 

Timothy M. Tymkovich 

Circuit Judge 

Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 4