FILED

United States Court of Appeals

Tenth Circuit

July 30, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKEY DEWAYNE CHRISTIE,

Petitioner - Appellant,

No. 14-7020

(D.C. No. 6:13-CV-00045-RAW-KEW)

(E.D. of Okla.)

v.

DOUG BYRD, Warden,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

Rickey Dewayne Christie, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to permit him to appeal the district court’s

dismissal of his motion for habeas corpus relief under 28 U.S.C. § 2254. The

district court held that his motion was untimely under the one-year statute of

limitations period of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). 28 U.S.C. § 2244(d)(1). Pursuant to our jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we DENY the COA request and DISMISS the appeal. 

*

 This order is not binding precedent except under the doctrines of law of

the case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In 2006, Christie was convicted of first-degree manslaughter in Oklahoma

state court. Between his conviction and October 2010, Christie pursued a direct

appeal, several requests for state post-conviction relief, and an ill-timed federal

habeas petition. The district court comprehensively chronicled how each of these

filings affected Christie’s one-year AEDPA limitations period and gave Christie

the benefit of every doubt in calculating tolling periods and deadlines. 

Notwithstanding the district court’s helpful blow-by-blow analysis, only

two dates are relevant to render our decision. The first is March 17, 2011—the

latest possible date, taking all of the filings and proceedings into consideration,

on which Christie’s one-year limitations period expired.1

 The second is January

25, 2013—the date on which Christie finally filed his federal habeas petition.

AEDPA conditions a petitioner’s right to appeal a denial of habeas relief

under § 2254 upon the grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA

requires the applicant to demonstrate a “substantial showing of the denial of a

constitutional right.” Id. at § 2253(c)(2). When the district court finds a habeas

petition procedurally faulty, a COA can issue only when the prisoner shows 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

1

 As the district court correctly recognized, Christie’s requests for

mandamus and other unspecified judicial relief do not affect the untimeliness of

his habeas petition.

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debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

Since there is no doubt that Christie missed the one-year AEDPA deadline,

only equitable or statutory tolling can rescue his petition from being time-barred.

“To be entitled to equitable tolling, [appellant] must show (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336

(2007) (internal quotation marks omitted). Equitable tolling is only appropriate in

“rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000). Relatedly, under § 2244(d)(1)(B)–(D), statutory tolling is available in

cases of (1) delay-causing governmental interference, (2) newly discovered,

retroactively applicable constitutional rights, and (3) the unearthing of new

factual predicates. See Pace v. DiGuglielmo, 544 U.S. 408, 416 & n.6 (2005).

Construing Christie’s filing liberally, Hall v. Bellmon, 935 F.2d 1106, 1110

& n.3 (10th Cir. 1991), we are unable to detect a well-pointed justification for

tolling within his brief. We do, however, briefly address his two most intelligible

arguments. First, Christie contends that the deficient resources available at the

prison law library presented an impediment to his timely filing. Under our

precedent, however, this claim fails because Christie has not provided sufficient

facts suggesting that the state actively prevented him from accessing relevant

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materials, including those explaining AEDPA’s filing deadline. See Marsh v.

Soares, 223 F.3d 1217, 1220–21 (10th Cir. 2000); Gibson, 232 F.3d at 808. 

Second, seeking to make use of the Supreme Court’s recent decision in

McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), Christie alleges his actual

innocence to overcome his filing delay. But considering Christie has offered no

new evidence at all, let alone constitutionally relevant new evidence, he cannot

proceed past the actual-innocence gateway to overcome the AEDPA statute of

limitations. See id. at 1928, 1935; see also Schlup v. Delo, 513 U.S. 298, 329

(1995) (“[A] petitioner does not meet the threshold requirement unless he

persuades the district court that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.”) 

The remainder of Christie’s arguments reduce to a direct attack on the

reasons for his confinement, but they do not address the untimeliness of his

habeas petition. Moreover, even after our own thorough review of the record on

appeal for any grounds that would support further tolling the AEDPA limitations

period, we have come up empty. Put candidly, there is no reason Christie should

have waited until January 25, 2013 to file a habeas petition that was due by

March 17, 2011 at the latest. Accordingly, the district court was correct in

finding Christie’s petition untimely, and we conclude that Christie has failed to

demonstrate his entitlement to a COA.

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We DENY Christie’s request for a COA and DISMISS this matter.

ENTERED FOR THE COURT,

Timothy M. Tymkovich

Circuit Judge

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