*

This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. 

FILED

United States Court of Appeals

Tenth Circuit

December 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THURMAN HARVEY HINES,

Petitioner-Appellant, No. 07-6134

v. Western District of Oklahoma

MIKE MULLIN, Warden,

Respondent-Appellee.

(D.C. No. 07-CV-196-W)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

Thurman Harvey Hines, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Hines has failed to make

“a substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2). 
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Background

Appellant challenges his convictions in Case No. CF-95-2234 and Case No.

CF-04-7025. In Case No. CF-95-2234, Mr. Hines pleaded guilty to one count of

possession of a controlled dangerous substance with intent to distribute and to one

count of possession of a controlled dangerous substance without a tax stamp. In

Case No. CF-04-7025, he pleaded guilty to two counts of lewd acts with a child

under sixteen after former conviction of a felony.

Discussion

The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). 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). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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). Where, as here, the district court denies a habeas

petition on procedural grounds, a COA should issue when the prisoner shows, at

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

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

We deny Mr. Hines’s request for a COA because, as the district court held,

the one year statute of limitations for an application for a writ of habeas corpus

has expired. See 28 U.S.C. § 2244(d)(1). The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) requires a federal prisoner to file for federal

habeas relief within one year after his conviction becomes final or within one year

after “the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2255(4).

In Case No. CF-95-2234, judgment was entered on July 12, 2001. Mr.

Hines had ten days from the date of conviction to withdraw his guilty plea. See

Rule 4.2(A), Rules of Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22,

Ch. 18, App. The conviction therefore became final for purposes of the statute of

limitations on July 22, 2001, and the statute of limitations expired on July 22,

2002. In Case No. CF-04-7025, judgment was entered on September 23, 2005. 

Again Mr. Hines had ten days to withdraw his plea. He did not move to withdraw

his plea, so the conviction became final for limitations purposes on October 3,

2005; accordingly, the limitations period expired on October 3, 2006. Mr. Hines

did not file this petition challenging both convictions until February 15, 2007. 

The petition was therefore untimely, and no reasonable jurist could conclude

otherwise.
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The one-year statute of limitations may be subject to equitable tolling, but

such relief is available only “when an inmate diligently pursues his claims and

demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). Simple excusable neglect is not sufficient. Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000). 

Mr. Hines offers no sufficient reason for delay. He does allege that he sent

his petition to the district court within the one year statute of limitations, but as

the district court found, he provides no support for this claim. An independent

review of the record reveals no report of any filing by Mr. Hines during that time.

Conclusion

Accordingly, we DENY Mr. Hines’s request for a COA and DISMISS this

appeal.

Petitioner’s motion to proceed in forma pauperis is also DENIED.

Entered for the Court,

Michael W. McConnell

Circuit Judge