UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ BRAD LEE DAVIS, Petitioner - Appellant,

v. CARRIE BRIDGES,  Respondent - Appellee. No. 22-6107 (D.C. No. 5:21- CV-01028-SLP) (W.D. Okla.)

________________ _________________ ORDER 

________________ _________________ Before HOLMES , Chief Judge, KELLY , and ROSSMAN , Circuit Judges.

________________ _________________ Petitioner-Appellant, Brad Lee Davis, an Oklahoma state prisoner proceeding pro

se, 1 seeks a certificate of appeal ability (“COA”) to challenge the district court’s dismissal of his habeas petition brought under 28 U.S.C. § 2254. M r. Davis also challenges the denial of his request for appointment of counsel pursuant to 25 U.S.C. § 175.

 Pursuant to Fed. R. App. P. 43 (c)(2), Carrie Bridges is substituted as Respondent-Appellee for Scott Nunn, former warden of the James Crabtree Correctional Center.

 This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and collateral estoppel.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. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Davis litigates this matter pro se, we will “liberally” construe his filings, but “we will not ‘assu me the role of advocate.’” United States v. Parker , 720 F.3d 781, 784 n.1 (10th Cir. 2013) (quoting Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008)). FILED United States Court of Appeals Tenth Circuit 

### January 12, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 12 Additionally, Mr. Davis has filed two motions that remain pending: a request to proceed in forma pauperis (“IFP”) and a motion for summary disposition. For the reasons explained below, we deny Mr. Davis’s request for a COA, affirm the denial of his request for appointment of counsel, deny his motion for summary disposition, grant his application to proceed IFP, and dismiss the matter to the extent that Mr. Davis challenges the dismissal of his habeas petition.
I On May 11, 2015, Mr. Davis entered a guilty plea in Oklahoma state court to firstdegree manslaughter. On July 16, 2015, 2 the Oklahoma District Court in Pottawatomie County sentenced Mr. Davis to a term of 30 years in prison. There is no indication in the record that Mr. Davis filed a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”). Mr. Davis then sought post-conviction judi cial review of his sentence in state court. First, on May 3, 2017, nearly two ye ars after he had been sentenced, Mr. Davis filed a motion for judicial review of his se ntence pursuant to Okla. Stat. Ann. tit. 22, § 982a (West 2017). 3 The state trial court held a hear ing on the motion and, on July 5,

2 The record is inconsistent as to the precise date on which Mr. Davis was sentenced; various documents in the record sh ow the sentencing as occurring on either the 15th, 16th, or 17th of July 2015. We use the July 16, 2015, date because that is the date that appears on Mr. Davis’s official judg ment and sentence, but the precise date does not affect the disposition of an y of the issues before us.

3 At the time Mr. Davis was sentenced, a motion for judicial review could be brought within two years after the sentence was imposed. See O KLA

. S TAT

. A NN . tit. 22, § 982a (West 2015). In 2016—before Mr. Da vis filed his first motion for judicial review—§ 982a was amended to extend the tim e in which a motion for judicial review Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 23 2017, declined to modify Mr. Davis’s sentence, although, according to Mr. Davis, it did indicate that he could file another such mo tion after more time had elapsed. Then, on March 27, 2020, Mr. Davis filed a second motion for judicial review. The state trial court again held a hearing and, on July 14, 2 020, declined to mo dify the sentence. 4 On July 30, 2020, Mr. Davis filed an application for post-conviction relief to challenge his conviction in Oklahoma state court, arguing that the state trial court did not have jurisdiction over him because he is a member of the Chickasaw Nation and his alleged crime occurred within the boundaries of the Pottawatomie Nation Reservation. After conducting an evidentiary hearing, the state court de nied Mr. Davis’s motion for post-conviction relief on the merits, and th e OCCA affirmed on October 1, 2021. On October 20, 2021, Mr. Davis filed a pe tition for habeas cor pus under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Like his petition for state post-conviction review, Mr. Da vis’s habeas petition alleged that because the crime occurred in Indian country and he is a member of the Chickasaw Nation, the state court lacked jurisdiction over him. He further alleged that the U.S. Supreme Court’s

could be filed to five years after sentencing. See 2016 Okla. Sess. Law Serv. ch. 160 (West). The statute was again amended after Mr. Davis filed his first motion for judicial review, but not in a way that affects this appeal. See 2018 Okla. Sess. Law Serv. ch. 128 (West).

4 Mr. Davis has repeatedly insisted that his motions for judicial review were granted because the state trial court held judicial review hearings on his motions even though it ultimately declined to disturb his sentence. The st ate trial court itself, though, later characterized both motions as having been denied. Regardless, it is undisputed that the state trial court declined Mr. Davis’s reque sts to alter his sentence, and, as such, the precise characterization of the state trial court’ s rulings is immaterial to the issues before us. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 34 decision in McGirt v. Oklahoma , 591 U.S. ----, 140 S. Ct . 2452 (2020) applies retroactively, and that the factual basi s of his claim was unavailable before the McGirt decision. The State then filed a motion seeking to have Mr. Davis’s petition dismissed as untimely because it was not filed within the one -year time period prov ided by 28 U.S.C. § 2244(d)(1). In response, Mr. Davis argued, among ot her things, that (1) the filing of his motions for judicial review tolled the one-y ear statute of limitations under 28 U.S.C. § 2244(d)(2); (2) the filing of his motion for state post-conviction review tolled the statute of limitations under 28 U.S.C. § 2244(d)(2); (3) ther e were sufficient grounds to equitably toll the statute of limitations; and (4 ) the statute of limitations provided by the Antiterrorism and Effective Death Penalty Ac t (“AEDPA”) was inapplicable because Mr. Davis challenges the conviction court’s jurisdiction. The magistrate judge assigned to Mr. Da vis’s case recommended that the § 2254 petition be dismissed without prejudice as untim ely, reasoning that it was not filed within one year of the date on whic h his conviction became final and McGirt did not extend the limitations period. See Davis v. Nunn , No. CIV-21-1028-SLP, 20 22 WL 2102090, at *1 (W.D. Okla. Feb. 23, 2022). The magistrate judge also rejected Mr. Davis’s argument that his application for post-conviction relie f tolled the statute of limitations, reasoning that the one-year limitations period had alr eady expired by the time Mr. Davis filed his application for post-conviction relief. See id . at *3–4. However, the magistrate judge did not address Mr. Davis’s arguments related to his motions for judicial review and did not grapple with Mr. Davis’s equitable tolling argument. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 45 Both parties submitted objections to the magistrate judge’s report and recommendation. The State filed a limite d objection, challenging only the portion recommending that the petition be dismissed without prejudice. Mr. Davis submitted a broader objection, arguing th at his petition was timely and, alternatively, subject to statutory and equitable tolling. On May 23, 20 22, the district court largely accepted the magistrate judge’s recommendation, ruling that Mr. Davis’s petition was untimely under 28 U.S.C. § 2244(d)(1)(A) and rejecting M r. Davis’s arguments for statutory tolling under § 2244(d)(2) and fo r equitable tolling. See Davis v. Nunn , No. CIV-21-1028-SLP, 2022 WL 1618534, at * 3–4 (W.D. Okla. May 23, 2022). Th e district court agreed with the State, though, that the petition sh ould be dismissed with prejudice. See id. at *4. The district court thus dismissed Mr. Davis’s ha beas petition with prejudice and declined to issue a COA. See id . Mr. Davis timely filed a notice of appeal. 5

5 The day before filing his notice of a ppeal, Mr. Davis filed a motion to alter or amend the judgment pursuant to Federal Ru les of Civil Procedure 59(e) and 60(b)(3). Although Mr. Davis’s motion to alter or am end the judgment was not received by the district court until June 22, 2022—more than 28 days after the district court had entered judgment on May 23, 2022, see F ED

. R. C IV

. P. 59(b) (providing that Rule 59 motions must be filed within 28 days of the entry of judgment)—the district court applied the prison mailbox rule and concluded that the motion was timely filed because it was postmarked from Mr. Davis’s correctional facility on June 20, 2022. See R. at 283 (Dist. Ct. Order, filed July 18, 2022); see also Price v. Philpot , 420 F.3d 1158, 1163–64 (10th Cir. 2005) (discussing the prison mailbox rule); F ED

. R. A PP

. P. 4(c)(1) (same). The district court denied Mr. Davis’s motion to a lter or amend the judgmen t on July 18, 2022. At that point, Mr. Davis’s notice of appeal, wh ich had been sent by him on June 21, 2022, and received by the district cour t on June 23, 2022, ripened. See F ED

. R. A PP

. P. 4(a)(4)(B)(i); Coll v. First Am. Title Ins. Co. , 642 F.3d 876, 884 (10th Cir. 2011). But because Mr. Davis did not then file a new or amended notice of appeal within 30 days of the district court’s July 18 order, the scope of Mr. Davis’s appeal before us does not include the district court’s denial of his motion to alter or amend. See F ED

. R. A PP

. P. 4(a)(4)(B)(ii); Coll , 642 F.3d at 885. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 56 Mr. Davis now seeks a COA from this Cour t to challenge the district court’s dismissal of his habeas petition. Mr. Davis also challenges the decision not to appoint counsel, and he seeks to proceed IFP. Finally, he has file d a motion for summary disposition based on newly received eviden ce from the Pottawatomie County Court Clerk or, alternatively, for an order that th e Appellee must file a responsive brief.
II
A A prisoner may not secure appellate review of the denial of relief under § 2254 without a COA. See 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna , 208 F.3d 862, 866– 67 (10th Cir. 2000); Gonzalez v. Thaler , 565 U.S. 134, 142 ( 2012). “We may grant a COA only if the petitioner makes a ‘substantia l showing of the deni al of a constitutional right.’” Milton v. Miller , 812 F.3d 1252, 1263 (10th Ci r. 2016) (quoting 28 U.S.C. § 2253(c)(2)). Because the district court deni ed his petition on pro cedural grounds, Mr. Davis must demonstrate, at the least, “t hat jurists of reason would find it debatable whether the petition states a valid claim of th e denial of a constitutional right, and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). “Where a plain procedural bar is present and th e district court is correct to invoke it to dispose of the case, a reasonable jurist coul d not conclude either that the district court erred in dismissing the petition or that the petitioner sh ould be allowed to proceed further.” Id. at 484. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 67 But although a petitioner need s a COA to appeal the denial or dismissal of a habeas petition, a COA is not a pr erequisite to appeal collatera l rulings in a habeas case. See Harbison v. Bell , 556 U.S. 180, 183 (2009). This is because 28 U.S.C. § 2253(c)(1)(A), the statute requiring a COA, “g overns final orders that dispose of the merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of the petitioner’s detention.” Id . Thus, collateral rulings, such as those denying a request to appoint counsel or orders denying a recu sal request, are not subject to the COA requirement and may be appealed without a COA. See id. ; see also Jackson v. Bowen , No. 22-6068, 2022 WL 2165789, at *2 (10th Cir. June 16, 2022) (per curiam) (unpublished) (“[The petitioner] does not need a COA to appeal the district court’s order denying his motion to appoint counsel.”); United States v. McIntosh , 723 F. App’x 613, 616 (10th Cir. 2018) (per curi am) (“The order denying recusa l . . . is a collateral order that does not require a COA for appeal.”). 6
B One procedural bar erecte d by AEDPA is the one-yea r statute of limitations provided by 28 U.S.C. § 2244 (d)(1). This statute of limitations begins to run from the latest of four dates: (1) the date on which the judgment became final by the conclusion of direct review or expiration of the time to s eek direct review; (2) the date on which an unconstitutional or unlawful im pediment to filing an action was removed; (3) the date on

6 We rely on unpublished decisions in our analysis throughou t this order only for their persuasive value. See, e.g. , United States v. Engles , 779 F.3d 1161, 1162 n.1 (10th Cir. 2015). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 78 which a new constitutional right was initially r ecognized by the Supreme Court and made retroactively applicable to cases on colla teral review; and (4) the date on which the factual predicate of the claims presented coul d have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244 (d)(1)(A)–(D). “The time during which a properly filed application for State post-conviction or other collateral review . . . is pending sha ll not be counted toward [this] period of limitation.” Id. § 2244(d)(2). But if a state post-c onviction application is not properly filed or it is untimely, it does not toll the statutory clock. See Pace v. DiGuglielmo , 544 U.S. 408, 417 (2005). And “[o]nly state petit ions for post-convicti on relief filed within the one year allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma , 468 F.3d 711, 714 (10th Cir. 2006) (citing Burger v. Scott , 317 F.3d 1133, 1136–37 (10th Cir. 2003)); see also Perez v. Dowling , 634 F. App’x 639, 644 (10th Cir. 2015) (concluding that a petitioner was not entitled to statutory tolling when his post-judgment motions were filed after the one-year limita tions period to file a habeas petition had expired). Thus, motions seeking collateral reli ef in state court that are filed after the expiration of the one-year limitations period ca nnot provide a basis for tolling, even if they are timely filed under state law. The statute of limitations may also be equitably tolled, but “only in ‘rare and exceptional circumstances.’” Sigala v. Bravo , 656 F.3d 1125, 1127 (10th Cir. 2011) (quoting York v. Galetka , 314 F.3d 522, 527 (10th Cir. 2003)). “Genera lly, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 89 been pursuing his rights diligen tly, and (2) that some extraordinary circumstance stood in his way.” Id. (quoting Pace , 544 U.S. at 418).
III Mr. Davis raises a number of arguments as to why the district court erred in dismissing his petition as time-barred. Fi rst, Mr. Davis argues that the one-year limitations period did not begi n to run until his second motio n for judicial review was denied. Second, he argues that even if the limitations period began to run earlier, he is entitled to statutory and equitable tolling, so hi s petition is timely noneth eless. Third, he argues that AEDPA’s one-year statute of limitati ons does not apply in his case because he challenges the jurisdiction of the state court. 7 For the reasons give n below, we conclude that no reasonable jurist could debate the propriety of the district court’s decision to dismiss Mr. Davis’s § 2254 petition as barred by the statute of limitations. See Slack , 529
U.S. at 478.
A The district court properly concluded that the one-year statute of limitations began to run on July 27, 2015. See Davis , 2022 WL 1618534, at *1. As relevant here, the oneyear statute of limitations begins to run when the judgment “bec[omes] final by the conclusion of direct review or the expirati on of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Gonzalez , 565 U.S. at 150. In order to seek direct

7 Mr. Davis also briefly argues that he was denied due process because the district court and magistrate j udge did not adequately consider his filings. This argument is wholly unpersuasive, and we do not discuss it further. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 910 review from a guilty plea in Oklahoma, a defenda nt must file a writ of certiorari to the
OCCA. See Hickman v. Spears , 160 F.3d 1269, 1271 (10th Cir. 1998); O KLA

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. A NN . tit. 22, § 1051(A) (West 2023). To do so, the de fendant must file an application to withdraw the plea within ten days of th e judgment and sentence being entered. See Hickman , 160 F.3d at 1271; Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals , O KLA

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. A NN . tit. 22, ch. 18, app. (West 2023); see also Clayton v. Jones , 700 F.3d 435, 441 (10th Cir. 2012) (“The ap plication to withdraw guilty plea and the evidentiary hearing are both necessary and critical steps in securing this appeal . . . .” (omission in original) (quoting Randall v. State , 861 P.2d 314, 316 (Okla. Crim. App. 1993))). Consequently, if defe ndants do not move within te n days after the entry of judgment and sentence to with draw their guilty plea, the de fendants’ convictions become final for purposes of § 2244(d)(1)(A) after the ten days have expired. See Clark , 468 F.3d at 713; Fisher v. Gibson , 262 F.3d 1135, 1142 ( 10th Cir. 2001). That is precisely what occurred here. Mr. Davis did not seek to withdraw his guilty plea within ten days of th e entry of judgment on July 16, 2015. Thus, the judgment became final ten days later—on July 26, 2 015—and the one-year statute of limitations began to run the next day. See Harris v. Dinwiddie , 642 F.3d 902, 906 n.6 (10th Cir. 2011) (discussing time calculation for purpo ses of AEDPA). That one-year period expired in July 2016. Becau se Mr. Davis’s habeas petiti on was not filed until October 20, 2021, it was thus untimely unless st atutory or equitable tolling applied. Mr. Davis raises two primary arguments ag ainst this conclusion. First, he argues that, generally, motions for judicial review u nder § 982(a) are categorically part of the Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1011 direct review process, so his conviction di d not actually become final for purposes of § 2244(d)(1) until the district court acted on his second motion for judicial review. Second, he argues that under the particular circumstances of his case, the motions for judicial review functioned as part of the direct review process. 8 Neither argument is persuasive.
1 The district court properly rejected th e argument that judicial review motions constitute a part of the direct review process. 9 See Davis , 2022 WL 1618534, at *3 n.5. As the district court recognized, a Tenth Circ uit panel already addressed this issue in a comprehensive and persuasive manner. See Williams v. Beck , 115 F. App’x 32, 33 (10th Cir. 2004). In Beck , the panel reasoned that “the sent ence modification procedure [under § 982a] is not part of the direct review pr ocess under Oklahoma law” because a § 982a

8 The district court also rejected separate arguments brought by Mr. Davis that his action was timely under 28 U.S.C. § 2244(d)(1)(C) and (D) because the Supreme Court’s decision in McGirt , 140 S. Ct. 2452, announced a new constitutional right that applied retroactively and beca use his claims could not have been presented until after McGirt was decided. See Davis , 2022 WL 1618534, at *1. But Mr. Davis has clarified that he does not assert that McGirt provides a basis for concluding that his petition was timely. And, in any event, such an argument would be unavailing. See Pacheco v. Habti , 62 F.4th 1233, 1246 (10th Cir. 2023) (rejecting a similar argument because “ McGirt announced no new constitutional right”); see also Jackson , 2022 WL 2165789, at *2 (“

McGirt ’s holding is not a previously undis coverable factual predicate for [the petitioner’s] claim; it is a legal conclusion.”).

9 Moreover, this argument may be wa ived because Mr. Davis did not raise it in his written submissions before the magistrate judge and, instead, raised it for the first time in his objection to the magistrate judge’s report and recommendation. See United States v. Garfinkle , 261 F.3d 1030, 1031 (10th Cir. 2001) (“ In this circuit, theories raised for the first time in objections to the magi strate judge’s report are deemed waived.”). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1112 motion “may be made in the tr ial court regardless of whether direct review is pending.” Id. In doing so, the panel relied on Orange v. Calbone , 318 F.3d 1167, 1170–71 (10th Cir. 2003), which noted that the inquiry is whether, under state law, the state procedure is part of the direct review process. See Beck , 115 F. App’x at 33 (citing Orange , 318 F.3d at 1170–71). The Beck panel also observed that “the orig inal judgment and sentence . . . furnishes the predicate of [the petitioner’s] habeas claims—not th e amended judgment and sentence resulting from the sentence modification.” Id. The same reasoning applies with equa l force here: Mr. Davis’s motions for judicial review did not challenge the validity of his conviction and were independent of his ability to challenge his conviction and se ntence on direct appe al. And his habeas petition is not based on anything that occurred at the sentence modification phase: rather, it challenges the jurisdiction of the conviction court. This ch allenge was fully cognizable on direct appeal and co uld have formed the basis of a fe deral habeas petition at an earlier date. Consequently, Mr. Davis’s claims about the state court’s lack of jurisdiction were not rendered timely by the fact that the state court later declined to reduce his sentence under § 982a. See Prendergast v. Clements , 699 F.3d 1182, 1187 (10th Cir. 2012) (observing that the statute of limitations must be applied “on a claim-by-claim basis”); see also Burks v. Raemisch , 680 F. App’x 686, 689–90 (1 0th Cir. 2017) (concluding that a resentencing did not make timely claims that could have—and should have—been raised earlier). Mr. Davis challenges this conclusion, arguing that Beck and Orange were abrogated by the Supreme Court’s opinion in Wall v. Kholi , 562 U.S. 545 (2011), so we Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1213 should “overrule” those deci sions. Aplt.’s Combined Op ening Br. & Appl. to Grant COA at 1–2. But the issue in Kholi was whether a motion for sentence reduction under Rhode Island law constituted part of the collateral review process for purposes of tolling under 28 U.S.C. § 2244(d)(2)—not whether it constituted part of the direct review

process . See 562 U.S. at 550–51. In fact, the parties in Kholi agreed that “a motion to reduce sentence under Rhode Island law is not part of the direct review process.” Id. at 547. 10 Consequently, Kholi does not support Mr. Davis’ s argument about the scope of direct review. Nor does it call into question the persuasive analyses in Beck and Orange

. 11
2 Mr. Davis’s argument that, in the specific circumstances of his case, his motions for judicial review functioned as part of the direct review process is also unavailing. He contends, specifically, that as part of the plea agreement, the original sentence was “preliminary,” and the trial judge assured M r. Davis that he would consider modifying the sentence after two years had passed (a timelin e that was later extended to five years).

10 Mr. Davis points to a footnote in Kholi in which the Supreme Court noted that it could “imagine an argument” that the sentence reduction proceedings at issue constituted a part of the direct review pro cess because, under Rhode Island law, parties could not challenge their sentences on direct a ppeal. 562 U.S. at 5 55 n.3. The Supreme Court, however, did not actually decide that issue, so it does not cast any doubt on the analysis in Beck or Orange . Additionally, unlike the situation in Kholi , see id. , Mr. Davis does not argue that Oklahoma law forecloses challenges to sentences on direct appeal.

11 In fact, panels of this Co urt have continued to follow Orange after the Supreme Court’s opinion in Kholi

. See Holbert v. Braggs , 807 F. App’x 808, 810 n.2 (10th Cir. 2020); Chidester v. Province , 433 F. App’x 661, 663 (10th Cir. 2011). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1314 Aplt.’s Combined Opening Br. & Appl. to Grant COA at 3–4. According to Mr. Davis, his judgment was therefore not final until his second motion for judicial review was denied. Nothing in the reco rd supports Mr. Davis’s argument that the state court entered a preliminary, rather than a final, sentence. And he cites no author ity that persuasively supports his argument that because the state c ourt left open the possibility that Mr. Davis could receive a sentence reduction under § 982a, the original sentence was only preliminary and never became fi nal. His comparisons to United States v. Anthony , 25 F.4th 792 (10th Cir. 2022) and Corey v. United States , 375 U.S. 169 (1963), are inapposite because, in those cases, the trial co urt deferred making final judgments as to parts of the sentence. See Anthony , 25 F.4th at 803–04 (invol ving a deferred restitution order); Corey 375 U.S. at 170, 175 (concerning a preliminary sentence pursuant to a statute permitting the court to commission a study prior to final sentencing). Accordingly, even if Mr. Davis is correct that the state court told him that he could file a § 982a motion two years after his original se ntencing, that would not transform § 982a into a mechanism for direct review. Moreove r, as noted above, nothing about the fact that Mr. Davis had conditions to fulfill before he could file a § 982a motion affected his ability to raise, at any time, the jurisdictional claims und erlying his current habeas petition. 12

12 Mr. Davis argues that the district court erred in declining to hold an evidentiary hearing, which, a ccording to him would have s hown that (1) the state court imposed conditions precedent on his ability to seek judicial review under § 982a and (2) the state court record was alte red. Even putting aside the si gnificant question of whether Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1415 Nor do the purported conditio ns precedent constitute a state-created impediment that would change the accrual date under § 2244(d)(1)(B). The conditions precedent did not form an “impediment” to filing a habeas petition based on the conviction court’s lack of jurisdiction. Nor does Mr. Davis allege that the impediment was unconstitutional or unlawful. See Sigala , 656 F.3d at 1127. Consequently, reasonable jurists could no t debate the district court’s conclusion that the statute of limitations began to ru n on July 27, 2015—at the expiration of the window for direct review. Thus, absent tolli ng, it expired one year later, in July 2016, and Mr. Davis’s habeas petition was over four years too late.
B Next, Mr. Davis argues that the district court erred in not concluding that his petition was timely because of st atutory and equitabl e tolling. But no reasonable jurist could debate the district court’s deci sion to reject both types of tolling.

Mr. Davis could demonstrate that he satisfies the stringent requirements of 28 U.S.C. § 2254(e)(2), the district court acted well with in its discretion in declining to grant an evidentiary hearing. See Schriro v. Landrigan , 550 U.S. 465, 468 (2007) (“In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e )(2), the decision to grant su ch a hearing rests in the discretion of the district court.”). Mr. Davi s’s requests for an evid entiary hearing were— at best—general and conclusory, which support s the district court’s decision to deny his requests. See Hooks v. Workman , 606 F.3d 715, 731 (10t h Cir. 2010). And “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petitioner’s factual allegations, which, if true, would entitle the app licant to federal habeas relief.” Schriro , 550 U.S. at 474; see Hooks , 606 F.3d at 731. Here, even if the evidentiary hearing could have resulted in evidence supporting Mr. Davis’s claim that the state trial court imposed conditions on his ability to seek judicial revi ew under § 982a, that would not have made his petition timely for the r easons described above. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1516 1 With respect to statutory tolling, Mr. Davis argues that because both of his motions for judicial review and his motion fo r post-conviction review were timely filed, they tolled the statute of limitations under 28 U.S.C. § 2244(d)(2) su ch that his habeas petition was timely filed. Whether a motion for judicial review under § 982a can ever lead to tolling of the statute of limitations under § 2244(d)(2) is an “unresolved issue in our circuit.” Randall v. Allbaugh , 662 F. App’x 571, 573 n.3 (10th Cir. 2016); see also Ameen v. Clayton , 829 F. App’x 864, 865 n.1 (10th Cir. 2020) (declining to resolv e this issue because the habeas petition would have been untimely even if § 98 2a was treated as tolling the statute of limitations). And we need not re solve that issue here because even if we assumed that motions for judicial review could sometimes toll the statute of limitations, they could not do so here. Both of the motions for judici al review were file d after the one-year limitations period expired in July 2016. As su ch, they cannot toll the statute of limitations. See Clark , 468 F.3d at 714; see also O’Bryant v. Oklahoma , 568 F. App’x 632, 636 (10th Cir. 2014); Perez , 634 F. App’x at 644. And contrary to Mr. Davis’s contention, there is no reason to treat motions for judicial review under § 982a differently from any other kind of motion on this point: it is a matter of plain logic that something filed after the expiration of a limitations pe riod cannot extend that limitations period. 13

13 Because we conclude that the motions for judicial review were filed too late to toll the statute of limitations, we need no t reach the separate issue of whether they were “properly filed” for purposes of § 2244(d)(2). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1617 See Perez , 634 F. App’x at 644 (applying this ru le to a motion to modify sentence under Oklahoma law). The same flaw applies with respect to Mr. Davis’s argument that his application for state post-conviction relief tolled the statute of limitations. See O’Bryant , 568 F. App’x at 636. The application for post-co nviction relief was not filed until the end of July 2020—about four years after the statute of limitations had run. It thus could not extend the one-year limitations period.
2 We also reject Mr. Davis’s argument that he is entitled to equitable tolling. Mr. Davis contends that he is entitled to equ itable tolling because the state trial court indicated that it would not consider his § 982a motions until multiple years had passed and he had completed classes at the pr ison. According to Mr. Davis, these representations from the trial c ourt led him to delay filing hi s habeas petition, so he is entitled to equitable tolling. We have explai ned that equitable tolling is a rare remedy, proper only when “an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumst ances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000). The problem for Mr. Davis is that, even if his attempts to seek judicial review of his sentence can be categorized as diligently pursuing his ri ghts, he has failed to show that some extraordinary circ umstance outside of his control prevented him from timely filing his habeas petition. As the district court properly recognized, see Davis , 2022 WL 1618534, at *2–3, any impediments to Mr. Davi s’s ability to seek judicial review under Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1718 § 982a would not prevent him from seeking stat e post-conviction relief or federal habeas relief based on a lack of jurisdiction in the conviction court. See Dill v. Workman , 288 F. App’x 454, 457 (10th Cir. 2008 ) (rejecting an argument that a state court’s delay in deciding a motion was a basis for equitabl e tolling because “the disposition of that motion is irrelevant to the calculation of the federal habeas limitations period”); Minor v. Chapdelaine , 678 F. App’x 695, 697 (10th Cir. 2017) (“[E]ven if we were to generously assume [the petitioner] was diligent, we are at a loss in identifyi ng what extraordinary circumstance may have stood in his way to prevent timely filing of his federal application.”); Green v. Booher , 42 F. App’x 104, 106 (10th Cir. 2002) (concluding that a petitioner was not entitled to eq uitable tolling based on the fact that he sought to exhaust state administrative remedies that were not required to be exhausted under AEDPA)

. Thus, although Mr. Davis was certainly within his rights to seek modification of his sentence pursuant to § 982a, the alleged stat e-created impediments to doing so are not a basis for equitable tolling. For those reasons, Mr. Davis is not entitled to either statutory or equitable tolling and, as such, his habeas petition was untimel y unless there is some other reason that AEDPA’s one-year statute of lim itations would not apply.
C Seeking to avert the time-bar, Mr. Davis as serts that AEDPA’s one-year statute of limitations is simply inapplicable to hi m because his challenge is based on the jurisdiction of the conviction court. He as serts that (1) because lack of jurisdiction renders a judgment void and ju risdiction is never waivable, jurisdictional issues can be Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1819 raised at any time regardless of AEDPA’s stat ute of limitations; and (2) applying the oneyear statute of limitations in his case would violate the Suspension Clause. 14 Both of these arguments are unavailing.
1 According to Mr. Davis, because lack of jurisdiction renders a judgment void and issues of subject-matter jurisdiction may be addressed at any time, AEDPA’s statute of limitations does not bar his petition. Mr. Davis is correct that “[a] bsence of jurisdiction in the convicting court is . . . a basis for fede ral habeas corpus relief cognizable under the due process clause.” Yellowbear v. Wyo. Att’y Gen. , 525 F.3d 921, 924 (10th Cir. 2008). But it does not follow that the jurisdiction of the conviction court can be raised at any time during habeas review in the face of AEDPA’s clear time limits. 15

14 U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case s of Rebellion or Invasion the public Safety may require it.”).

15 On this point, Mr. Davis contends that two previous decisions of this Court, Magnan v. Trammell , 719 F.3d 1159, 1164, 1 176–77 (10th Cir. 2013), and Murphy v. Royal , 875 F.3d 896, 912 (10th Cir. 2017), “cont emplate the inapplicability of AEDPA” to a conviction in Indian country. Aplt.’s Combined Opening Br. & Appl. to Grant COA at 27. But although these cases do question whether the deference due to state courts’ factual findings demanded by AEDPA would apply to i ssues of Indian country jurisdiction, they do not support a conc lusion that AEDPA’s one-year statute of limitations is inapplicable in Indian country . Furthermore, although Mr. Davis asserts that a challenge to a “conviction by a lo wer court without sovereign subject matter jurisdiction cannot be procedurally barred or waived and can be raised at any time,” id ., this statement of the law is not entirely accurat e. The full articulation of this principle is that subject-matter jurisdiction can never be waived or forfeite d and thus may be challenged “at any time prio r to final judgment.” City of Albuquerque v. Soto Enters., Inc. , 864 F.3d 1089, 1093 (quoting Grupo Dataflux v. Atla s Global Grp., L.P. , 541 U.S. 567, 571 (2004)). In other words, subject-ma tter jurisdiction can indeed be raised at any time—so long as a final judgment has not been entered. In this case, final judgment for Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 1920 Courts have repeatedly rejected attempts to carve out a jurisdictional exception to AEDPA’s plain language. See Pacheco v. Habti , 62 F.4th 1233, 1245 (10th Cir. 2023) (“When Congress enacted the limitations pe riod in AEDPA, it discerned no reason to provide a blanket exception fo r jurisdictional claims.”); Prost v. Anderson , 636 F.3d 578, 592 (10th Cir. 2011) (noting that a claim base d on the conviction court’s jurisdiction was still subject to AEDPA’s bar on second-or-successive petitions); cf. McGirt , 140 S. Ct. at 2479 (“Other defendants who do try to cha llenge their state convictions may face significant procedural obstacl es, thanks to well-known st ate and federal limitations on postconviction review in criminal proceedings.”). In the federal habeas context, challenge s to state court convictions based on the state court’s lack of jurisdiction are esse ntially due process challenges, which are properly subject to AEDPA’s procedural requirements. See Morales v. Jones  ̧ 417 F. App’x 746, 749 (1 0th Cir. 2011) (noting that though the petitioner “argues subject matter jurisdiction can never be waiv ed and therefore he can never be barred from raising the issue” he “makes no argument to differen tiate this case from any other due process violation” and thus “[a]s with any other habeas claim, it is subject to dismissal for untimeliness”); see also Yellowbear , 525 F.3d at 924 (“Absence of jurisdiction in the

Mr. Davis has already been entered, so he is incorrect that he has an unqualified right to challenge the subject-matter jurisdiction of the conviction court at this stage. That there are procedural limits on the ab ility to challenge subject-matte r jurisdiction is evident in the outcomes reached by the decisions discussed infra , which have rejected attempts to except jurisdictional claims from the plai n limitations provisions of AEDPA. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2021 convicting court is indeed a basis for federa l habeas corpus relief cognizable under the due process clause.”). Consequently, Mr. Davis is incorrect that his challenge to the conviction court’s jurisdiction can necessarily be raised at any time. See Pacheco , 62 F.4th at 1245; see also Murrell v. Crow , 793 F. App’x 675, 679 (10th Ci r. 2019) (“‘[A]s with any other habeas claim,’ [the petitioner’s] due-proce ss claim ‘is subject to dismissal for untimeliness.’” (quoting Morales , 417 F. App’x at 749)). 16
2 Mr. Davis further argues that because th e writ of habeas corpus was originally intended to allow prisoners to challenge the jurisdiction of the conviction court, it would violate the Suspension Clause if his habe as petition was barred by AEDPA’s one-year statute of limitations. This is so, he co ntends, because the Suspension Clause “at a minimum, protects the writ as it existed in 1789, when the Constitution was adopted,” and, in 1789, a prisoner coul d bring a habeas challenge ba sed on the conviction court’s lack of jurisdiction. Aplt.’s Opening Br. & Appl. to Grant COA at 27 (quoting Dep’t of

16 We note that this argument has been repeatedly raised since the issuance of McGirt , and previous Tenth Circuit panels have uniformly—and persuasively— concluded that claims similar to those brou ght by Mr. Davis are still subject to AEDPA’s statute of limitations. See, e.g. , Allen v. Crow , No. 22-6141, 2023 WL 5319809, at *2 (10th Cir. Aug. 18, 2023) (unpublished); King v. Harpe , No. 23-5041, 2023 WL 5216618, at *2–3 (10th Cir. Au g. 15, 2023) (unpublished); Schemmer v. Crow , No. 22- 6139, 2023 WL 2924627, at *3 (10th Cir. Apr. 13, 2023) (unpublished); Warnick v. Harpe , 22-5042, 2022 WL 1 6646708, at *2 (10th Cir. N ov. 3, 2022) (unpublished); Lamarr v. Nunn , No. 22-6063, 2022 WL 2678602, at *2 (1 0th Cir. July 12, 2022) (unpublished); Hill v. Nunn , No. 22-6042, 2022 WL 2154997, at *1 (10th Cir. June 15, 2022) (unpublished). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2122 Homeland Sec. v. Thuraissigiam , 591 U.S. ----, 140 S. Ct. 1959, 1969 (2020)). But this argument, too, is unavailing. 17 As Mr. Davis asserts, historically, the wr it of habeas corpus provided a means for prisoners to challenge the jurisd iction of the conviction court. See Brown v. Davenport , 596 U.S. 118, 129 (20 22) (“A habeas court could grant relief if the court of conviction lacked jurisdiction over the de fendant or his offense.”); Abernathy v. Wandes , 713 F.3d 538, 554 (10th Cir. 2013) (noting that the “the writ as it existed in 1789 was available only in very limited circumstances” including to inquire into whethe r the conviction court had jurisdiction). Moreover, “‘at the abso lute minimum,’ the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified.” Boumediene v. Bush , 553 U.S. 723, 746 (2008) (quoting INS v. St. Cyr , 533 U.S. 289, 301 (2001), superseded by statute , REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 310, as recognized in Nasrallah v. Barr , 590 U.S. ----, 140 S. Ct. 1683, 1690 (2020)).

17 Although the district court and th e magistrate judge did not expressly address Mr. Davis’s Suspension Clause argumen t, “the failure to address [an] argument does not alone warrant a certificate of app ealability” because “we may deny a certificate of appealability for any reason th at the record supports.” Proctor v. Whitten , No. 21- 6033, 2021 WL 5 755629, at *3 (10th Cir. Dec. 3, 2021) (unpublished) (citing Davis v. Roberts , 425 F.3d 830, 834 (10th Cir. 2005)); cf. Self v. Milyard , 522 F. App’x 435, 437 n.2 (10th Cir. 2013) (“We pause to note that, to the extent that we disagree with some of the particulars of the district court’s anal ysis, such a disagreem ent does not perforce require us to grant [the petitioner] a COA, so long as we are confident in the correctness of the district court’s ultimate resolution of his habeas claims—and we are.”); Jackson v. Utah , 782 F. App’x 690, 695 (10th Cir. 2019) (“[W]hen reasonable jurists could not disagree with the district court’s denial of a claim, we will deny a COA even if they could disagree with particulars of the district court’s analysis.”). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2223 However, “[w]hether the one-year limita tion period violates the Suspension Clause depends on whether the limitation pe riod renders the habeas remedy ‘inadequate or ineffective’ to test the legality of detention.” Miller v. Marr , 141 F.3d 976, 977 (10th Cir. 1998) (quoting Swain v. Pressley , 430 U.S. 372, 381 (1977)). And although “[t]here may be circumstances where the limitation pe riod at least raises serious constitutional questions and possibly renders the habeas remedy inadequate and ineffective,” id . at 978, that is not the case here. Mr. Davis had an adequate opportunity to raise the conviction court’s lack of jurisdiction earlier, and the fact that he failed to timely do so does not mean that applying AEDPA’s statute of lim itations to his claims would violate the Suspension Clause. See Winterhalter v. Nunn , No. 22-6054, 2022 WL 3440243, at *2 (10th Cir. Aug. 17, 2022) (unp ublished) (rejecting the same argument by a petitioner who brought a post- McGirt challenge to the jurisdiction of the conviction court); see also Murrell , 793 F. App’x at 679 (concluding that , notwithstanding the Suspension Clause, AEDPA’s one-year statute of limitations ap plied to bar a petition based on lack of subject-matter jurisdiction in the conviction court); Scruggs v. Snyder , 41 F. App’x 829, 830 (6th Cir. 2002) (same). 18

18 This argument has also been rej ected multiple times by district courts within our circuit. See Frierson v. Harpe , No. 22-CV-0141-CVE-CDL, 2023 WL 1956642, at *2 (N.D. Ok la. Jan. 27, 2023); Williamson v. Nunn , No. CIV-22-00395, 2022 WL 17986821, at *4 (W.D. Okla. Dec. 29, 2022); Pitts v. Nunn , No. CIV-22-00025-JD, 2022 WL 17361487, at *2 n.5 (W.D. Okla. Dec. 1, 2022); Graham v. Pettigrew , No. CIV-20-828-G, 2022 WL 9597511, at *3 (W.D . Okla. Apr. 8, 2022), report and recommendation accepted in part and modified in part , 2022 WL 9497308, at *1 (W.D. Okla. Oct. 14, 2022). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2324 Nor does Mr. Davis argue that he is fact ually innocent, which could bear on the Suspension Clause issue. See Fisher , 262 F.3d at 1145 (cons idering whether the petitioner argued that his due proc ess violations resulted in th e erroneous conviction of an innocent man in determining whether the pe titioner had a cognizable argument under the Suspension Clause); Miller , 141 F.3d at 978 (same); see also Winterhalter , 2022 WL 3440243, at *2. He simply ar gues that there was a lack of jurisdiction, but jurisdictional issues alone do not bear on innocence. See Pacheco , 62 F.4th at 1244–45. Consequently, we reject Mr. Davis’s argum ent that AEDPA’s statute of limitations is inapplicable in his case. And because re asonable jurists could not disagree on this point, or that Mr. Davis’s petition is time-barred, we deny his request to issue a COA.
IV Mr. Davis also argues that the district c ourt erred in declinin g to appoint counsel pursuant to 25 U.S.C § 175. As an initial matter, Mr. Davis does not need a COA to appeal from the denial of his motion to appoint counsel. See Harbison , 556 U.S. at 183 (concluding that an order declining to enlarg e the authority of appo inted counsel is not a final order on the merits and is therefor e not subject to the COA requirement); see also Jackson , 2022 WL 2165789, at *2 (“[The petitioner] does not need a CO A to appeal the district court’s order denying his motion to appoint counsel.”). Nevertheless, his challenge is unsuccessful for two reasons. First, Mr. Davis has waived his arguments related to the denial of his motion to appoint counsel, so we need not even reach the merits of his arguments. Under Federal Rule of Civil Procedure 72(a), magistrate judges may decide non- dispositive matters in Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2425 the first instance, and parties have the oppo rtunity to object to th e magistrate judge’s rulings. And “the firm waiver rule applies when a party fails to object to a magistrate judge’s non-dispositive ruli ng under Rule 72(a).” Sinclair Wyo. Refining Co. v. A&B Builders, Ltd. , 989 F.3d 747, 783 (10th Cir. 2021). Thus, unless an exception to the firmwaiver rule applies, see id. ; see also Duffield v. Jackson  ̧ 545 F.3d 1234, 1237–38 (10th Cir. 2008) (describing the exceptio ns to the firm-waiver rule), a party who fails to appeal a magistrate judge’s ruling on a non-dispositiv e issue waives the right to appeal that ruling. The appointment of counsel is su ch a non-dispositive issue. See Utah v. Gollaher , 804 F. App’x 947, 951 (10th Cir. 2020 ). The district court referred Mr. Davis’s motion to appoint counsel to the magistrate judge, who denied it. 19 Mr. Davis then purported to move for r econsideration of that request , which the magistrate judge denied in his report and recommendation. See R., Vol. I, at 137 (“This Report and Recommendation disposes of all issues refe rred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.”). But Mr. Davis did not challenge the magistrate judge’s ruling on this appointment-of-counsel point in his objection. Consequently, Mr. Davis has waived any challenge to the denial of his request for appo intment of counsel, a nd we will excuse this waiver only if one of the exce ptions to the firm-waiver rule applies. Mr. Davis does not

19 The magistrate judge’s denial of M r. Davis’s first request for appointment of counsel was not included in the record on appeal, but we can take judicial notice of documents in the district court’s record. See Allen v. Zavaras , 416 F. App’x 784, 785 n.2 (10th Cir. 2011). Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2526 argue that any of those excep tions apply; nor do we see a ny reason why they would. Accordingly, on waiver grounds, we could decline to reach the merits of Mr. Davis’s challenge to the denial of his requ est for appointment of counsel. Second, even if we were to reach the merits of Mr. Davis’s arguments, however, those arguments would fail. S ection 175 provides that “[i] n all States and Territories where there are reservations or allotted Indian s the United States atto rney shall represent them in all suits at law and in equity.” Ac cording to Mr. Davis, the language of this statute makes appointment of counsel to represent Indians mandatory and decisions stating the opposite, such as Oviatt v. Reynolds , 733 F. App’x 929, 931 (10th Cir. 2018), are wrongly decided. We disagree. As has been repeatedly ex plained by federal courts, although § 175 authorizes the United States Attorney to represent Indian s on allotted lands, it does not create a mandatory duty to do so. See Navajo Nation v. San Juan Cnty. , 929 F.3d 1270, 1278 (10th Cir. 2019); Shoshone Bannock Tribes v. Reno , 56 F.3d 1476, 1481 (D.C. Cir. 1995); Siniscal v. United States , 208 F.2d 406, 409–4 10 (9th Cir. 1953); see also Scott v Hormel , 854 F. App’x 958, 960 (10th Cir. 2021); Oviatt , 733 F. App’x at 931. We decline to revisit this well-settled principle, pa rticularly in light of Mr. Davis’s failure to cite any authority to the contrary. And the magistrate judge did not abuse his discretion in declining to appoint counsel. See Rucks v. Boergermann , 57 F.3d 978, 979 (10th Ci r. 1995) (“We review the denial of appointment of counsel in a ci vil case for an abuse of discretion.”); see also
Scott , 854 F. App’x at 960 (apply ing this same standard to the denial of a request for Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2627 appointment of counsel under 25 U.S.C. § 175). Notably, “abuse of discretion in this context is even more deferen tial than usual: ‘Only in those extreme cases where the lack of counsel results in fundamental unfairn ess will the district court’s decision be overturned.’” McCleland v. Raemisch , No. 20-1390, 2021 WL 4469947, at *5 (10th Cir. Sept. 30, 2021) (unpublished) (quoting McCarthy v. Weinberg , 753 F.2d 836, 839 (10th Cir. 1985)). In determining whether to ap point counsel, the trial cour t must consider a number of factors, including “the merits of the litigan t’s claims, the nature of the factual issues raised in the claims, the litigan t’s ability to present his claims , and the complexity of the legal issues raised by the claims.” Rucks , 57 F.3d at 979 (quoting Williams v. Meese , 926 F.2d 994, 996 (10th Ci r. 1991)). If the district court “f ail[s] to provide reasons for denying a request for counsel . . ., we may in dependently examine the propriety of such a request.” Id. The magistrate judge denied Mr. Davi s’s initial request for appointment of counsel as premature because the case had not yet gone through an initial judicial evaluation to determine whether the issues pr esented had merit. Mr. Davis renewed his request after the State moved to dismiss, and the magistrate judge denied it without explanation when he recommended di smissing the habeas petition. We conclude that there was no error in denying Mr. Davis’s request to appoint counsel. Mr. Davis has ably presented the le gal issues and evidently conducted extensive research. See id. Moreover, because Mr. Davis’s petition was dismissed on timeliness grounds, there would be no need for an a ttorney to develop the factual record. See id. Mr. Davis asserts that access to counsel would have helped him to clarify his legal Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2728 arguments, but such a consideration is true in most—if not every—case and thus cannot be dispositive. We therefore affirm the denial of Mr. Davis’s motion to appoint counsel.
V Next, we address Mr. Davis’s motion for summary dispos ition based on newly received evidence. Specifically, Mr. Davis claims that he has received dispositive evidence from the state court clerk regardin g the conditions preced ent contained within his plea agreement, and he argues that, base d on this new evidence , he is entitled to summary disposition in his favor and that the case should be remanded to state court. See
10 TH C IR

. R. 27.3(A)(1)(b) and (c). 20 Mr. Davis cites no authority that newly received evidence is a basis for such a summary disposition. See Nicholson v. Jefferson Cnty. , 138 F. App’x 76, 80 (10th Cir. 2005) (“[N]on-jurisdictional defi ciencies relating to the merits or to matters of procedure are not proper grounds for summary dispositi on.”). And, in any event, the purportedly dispositive evidence addu ced by Mr. Davis does not show that he is entitled to habeas relief or that he may circumvent AEDPA’s st atute of limitations. This evidence, as well as the arguments in his motion, are duplicativ e of the arguments in his application for a COA—that is, that his plea ag reement included co nditions precedent, so his sentence was

20 Mr. Davis also contends that he is entitled to summary disposition under 10th Cir. R. 27.3(A)(1)(b). But that partic ular rule authorizes only “a motion for summary disposition because of a supervening ch ange of law or mootness .” 10 TH C IR

. R. 27.3(A)(1)(b) (emphasis added). As such, it is inapplicable here. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2829 not final until July 14, 2020, when his sec ond motion for judicial review was denied. 21 Under the rationale of these arguments, M r. Davis contends that he timely filed his habeas petition. But, as discussed above, even if there were conditions precedent imposed on his ability to seek judicial review under § 982a, reasona ble jurists would not dispute the district court’s conclusion with re spect to the timeliness of Mr. Davis’s habeas petition and so we deny Mr. Davis’s motion for summary disposition. 22
VI Finally, we address Mr. Davis’s request to proceed IFP. To proceed IFP on appeal, Mr. Davis must make a “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991)). As explained above, Mr. Davis is not entitled to a COA because reasonable jurists could not debate the district court’ s ruling that his § 22 54 petition is barred by AEDPA’s one-year statute of limitations. But Mr. Davis makes arguments that are “not

21 Mr. Davis cites to Nordstedt v. Louthan , No. 22-CV-0414-G FK-CDL, 2023 WL 3689408 (N.D. Okla. Ma y 26, 2023), as support fo r his request for summary disposition. But Nordstedt actually cuts against Mr. Da vis’s argument for two reasons. First, the district court in that case treate d the petitioner’s request under Okla. Stat. Ann., tit. 22, § 994 (West 2023) as being part of th e collateral review process, not the direct review process. See 2023 WL 3689408, at *3–4. S econd, Mr. Davis overlooks a key difference between his situation and that of the petitioner in Norstedt : in that case, the petitioner sought review under § 994 eight da ys after his conviction became final—well within the one-year limitations period. See id. at *1. Here, in contrast, Mr. Davis waited almost two years to file hi s motion for judicial review.

22 For the same reasons, we reject M r. Davis’s alternative argument that the State should be required to file a responsive brief. Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 2930 so thoroughly frivolous that IF P status should be denied.” United States v. Robinson , 762 F. App’x 571, 579 (10th Cir. 2019). We therefore grant Mr. Davis’s motion to proceed
IFP.
VII For the foregoing reasons, we DENY Mr. Davis’s request for a COA, AFFIRM the denial of his request for appointment of counsel, DENY his motion for summary disposition, GRANT his application to proceed in forma pauperis , and DISMISS this matter to the extent that Mr. Davis challe nges the dismissal of his habeas petition.

Entered for the Court

Jerome A. Holmes Chief Judge Appellate Case: 22-6107 Document: 010110982907 Date Filed: 01/12/2024 Page: 30