FILED

United States Court of Appeals

Tenth Circuit

July 11, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLARK ALLEN DAVIS,

Petitioner - Appellant,

v.

JAMES RUDEK, Warden,

Respondent - Appellee.

No. 11-5035

(N.D. Oklahoma)

(D.C. No. 4:10-CV-00404-CVE-FHM)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges. 

Clark Allen Davis, an Oklahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) so he can appeal the district court’s dismissal

of the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order

disposing of a § 2254 petition unless the petitioner first obtains a COA). Davis’s

request to proceed in forma pauperis on appeal is granted. 

On October 30, 2007, Davis pleaded guilty in Oklahoma state court to

trafficking in illegal drugs, unlawful possession of paraphernalia, driving without

a driver’s license on his person, and making an improper right turn. He was

sentenced the same day. Davis did not attempt to withdraw his guilty plea or
1

The district court referenced this court’s unpublished opinion in Nicholson

v. Higgins, for its conclusion that an application for judicial review filed pursuant

(continued...)

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otherwise appeal his convictions. On August 28, 2008, however, Davis filed a

Motion for Judicial Review, seeking a modification of his sentence. See 22 Okla.

Stat. tit. 22, § 982a. The state court denied the motion. Davis’s state application

for post-conviction relief, filed on April 24, 2009, was also denied by the state

district court and the denial was affirmed by the Oklahoma Court of Criminal

Appeals. 

Davis filed this federal habeas corpus action on June 23, 2010. In his

§ 2254 petition, Davis asserted his guilty plea was not made knowingly and

voluntarily. He also raised claims of ineffective assistance of counsel. 

Respondent moved to dismiss Davis’s habeas action as time-barred, arguing it

was filed after the expiration of the one-year limitations period established by the

AEDPA. See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations

for § 2254 applications). The district court concluded Davis’s convictions

became final on November 2, 2007, because he did not attempt to withdraw his

guilty plea or file a direct appeal. See Fisher v. Gibson, 262 F.3d 1135, 1142

(10th Cir. 2001). The district court further concluded the one-year statute of

limitations period was not statutorily tolled while Davis sought state postconviction relief because he did not pursue that avenue of relief until April 24,

2009, more than one year after his convictions became final.1

 Id. at 1142-43. 
1

(...continued)

to Okla. Sta. tit. 22, § 982a does not toll the AEDPA’s one-year limitations

period. 147 F. App’x 7, 8 n.2 (10th Cir. 2005). 

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Although Davis argued he was entitled to equitable tolling because of a medical

disability and limited access to a law library, the district court concluded he did

not meet the standard for equitable tolling. See Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000) (stating equitable tolling of AEDPA’s one-year limitations

period is available “only in rare and exceptional circumstances” (quotation

omitted)). Accordingly, the court granted Respondent’s motion and dismissed

Davis’s habeas petition.

To be entitled to a COA, Davis must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” 

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling of the limitations period for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). 

This court has reviewed Davis’s appellate brief and application for COA,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Davis is not
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entitled to a COA. Further, the record establishes Davis has failed to demonstrate

any circumstance that justifies equitable tolling. Thus, the district court did not

abuse its discretion when it refused to equitably toll the one-year limitations

period.

The district court’s resolution of Davis’s habeas application is not

reasonably subject to debate and his claims are not adequate to deserve further

proceedings. Accordingly, Davis has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2). This court denies Davis’s request for a COA and dismisses this

appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge