UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOHN CHRISTIAN BURTON, Petitioner - Appellant,

v. JIMMY MARTIN, Warden, Respondent - Appellee. No. 18-5117 (D.C. No. 4:18-CV -00201-GKF-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before LUCERO , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Pro se state inmate John C. Bur ton seeks a certificate of appea lability (COA) to appeal the district court’s dismissal of his petition for ha beas relief under 28 U.S.C. § 2254. 1 For the reasons discussed belo w, we deny Burton’s request for a COA and dismiss the appeal.
I. Burton is serving a 42-year sen tence at the North Fork Correct ional Center (NFCC) in Sayre, Oklahoma for committing second-degree burglary after two or

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Burton is proceeding pro se, “we construe his filings liberally.” Garza v. Davis , 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 more prior felony convictions. In 2016, Burton appealed his se ntence to the Oklahoma Court of Criminal App eals, which affirmed his convicti on and sentence. Burton never filed a petition fo r writ of certiorari in the Uni ted States Supreme Court, nor did he file any post-convicti on relief applications in stat e court. On April 11, 2018, Burton filed the § 2254 habeas petition unde rlying this proceeding in the district cour t. The petition laid out severa l claims for relief. Respondent moved to dismiss the petition as time barred. Burto n did not dispute that his petition was filed outside t he one-year limitation period p rovided by 28 U.S.C. § 2244(d). Rather, he argued that he originally filed his habe as petition in a timely manner, on August 28, 2017. See COA Petition at 2. When he learned that the original filing “never made it to the court,” he filed the inst ant petition, on April 11,
2018. Id. Burton gave two reasons for why t he district court should not f ind the instant petition time-barred: (1) by appl ying the prison mailbox rule, and (2) by applying principles of equitable tolli ng. The district court found neit her argument persuasive and dismissed Burton’s petition. The district court also denie d Burton a COA. Burton timely appealed.
II. Before we may consider the mer its of a habeas p etition, Burton must obtain a COA. 28 U.S.C. § 2253(c)(1)(A) . To do so, Burton must make a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Here, where the district court denied his petiti on as untimely, Burton must mak e that showing by3 demonstrating both (1) “that ju rists of reason would find it de batable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it de batable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Further, “[w]here a plain procedural bar is presen t and the distri ct court is cor rect to invoke it to dispose of the case, a reasonable jurist c ould not conclude eit her that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.
III. Burton first argues that the dis trict court should have applied the prison mailbox rule to his initial hab eas petition, allegedly mailed o n August 28, 2017, in order to deem the instant petit ion timely. The prison mailbox rule provides that “an inmate’s notice of appeal is ti mely if it is placed in the pris on mailing system on or before the last day for filing , provided it is accompanied by a declaration complying with 28 U.S.C. § 1746, a notariz ed statement or other evidence that the notice was so deposited.” Jackson v. Oklahoma , 735 F. App’x 504, 509 n.6 ( 10th Cir. 2018) (citing Fed. R. App. P. 4(c)(1)). Additi onally, the rule specifies tha t, if an institution “has a system designed for legal mail, an inmate confined there must u se that system to receive the benefit of” this rule. Fed. R. App. P 4(c)(1). 2

2 This court has previously not ed that Oklahoma does not recogni ze a prison mailbox rule. See Moore v. Gibson , 250 F.3d 1295, 1298 (10th Cir. 2001). However, this court applies the rule to filings by state inmate s in federal court. See,4 Below, the district court reas oned that, “even assuming [Burton ] mailed a federal habeas petition to this Court in August 2017, he has no t met his burden to establish that he did so by u tilizing the NFCC’s legal mail sys tem.” Dist. Ct. Op. at 9. “As a result,” the district court could not “apply the pris on mailbox rule to deem his April 2018 petition timely.” Id. Reasonable jurists would not deba te whether the district court correctly arrived at this conclusion. In her affi davit submitted by Respondent, the NFCC law librarian, Paula Bethea, explained that the N FCC “follows Department of Co rrections Operating Procedures for the ha ndling of legal mail.” ROA at 6 2. 3 Specifically, “all outgoing legal mail will be marke d ‘legal’ and entered in a mai l log and identified as legal.” Id. Further, “a staff member [mu st] observe the inmate place outg oing legal mail in an envelope before sealing the envelope.” Id. At the direction of the distric t court, Respondents provided a certified copy of the Outgoing Legal/Privileged Ma il Log for the NFCC for the mon ths of July, August, and September 2017. Supp . ROA at 3. Consistent with B ethea’s

e.g. , Davis v. Bryant , 737 F. App’x 878, 881 (10t h Cir. 2018) (applying prison mailbox rule to concl ude Oklahoma state in mate’s notice of appe al from district court’s denial of COA in hab eas case was timely filed).
3 Both parties submitted affidavi ts from Bethea to the district court. Burton submitted the first affidavit, i n which Bethea stated that Burt on “deposited his § 2254 Habeas Petition in the Prison’ s Institutional Mailbox on August 28th, 2017 . . . .” ROA at 26. Respondent filed Beth ea’s second affidavit, which s ought to “clarify [Bethea’s] earlier affidavit.” Id. at 62. In the second affidavi t, Bethea explained that her “previous affidavit [submitte d by Burton] was based solely on [Bethea’s] recollection of conversations wit h inmate Burton and was not ba sed on any official record of outgoing legal mail.” Id.5 description, the log records the date of the legal mailing, alo ng with the sender’s name, his Department of Correcti ons number, the name of the rec ipient, and other details. Id. at 4–36. The log shows no entrie s for legal mail sent by Burt on in those months. Further, Bethea stated, “ Inmate Burton did not bring a ny legal mail to the law library at NFCC on or around August 28, 2017 to be stamped. ” Id. at 62. Burton very well may have attempt ed to mail a habeas petition i n August of 2017. But the evidence provided by both parties makes plain th at, while a legal mail system was available at the NFCC for Burton to use, he did not do so. As such, Burton has failed to de monstrate eligibility for the prison mai lbox rule. Because the district court correctly invoked the bar to the prison mailbox rule’s application in this case, we decline to grant Bur ton a COA on this issue.
IV. Burton also argues that the dis trict court should have applied equitable tolling to the one-year limitation period t hat would otherwise bar the ins tant petition. “[E]quitable tolling of the one-year period ma y be granted, but only in ‘rar e and exceptional circumstances.’” Coppage v. McKune , 534 F.3d 1279, 1280 (1 0th Cir. 2008) (quoting
York v. Galetka , 314 F.3d 522, 527 (10th Cir. 2003)). “[E]quitable tolling re quires a litigant to establish two elements : ‘(1) that he has been pursu ing his rights diligently, and (2) that some extraordinary cir cumstance stood in his way.’” Yang v. Archuleta , 525 F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v. Florida , 549 U.S. 327, 336 (2007)). “‘[A]n inmate bears a strong burden to show specific facts to s upport his claim of6 extraordinary circumstan ces and due diligence.’” Id. (alteration in original) (quoting
Brown v. Barrow , 512 F.3d 1304, 1 307 (11th Cir. 2008)). Burton claims that “extraordinar y circumstance[s] beyond his co ntrol made it impossible to file his petition on time.” COA Petition at 1. First, he argues that he mailed his initial petition on Au gust 28, 2017, “ using the only postage system available.”
Id. at 3. To explain his failure t o use the legal mail system, ra ther than the regular mail system, Burton complains that n o one at the NFCC went through a ll the facility’s mail to “check[]” for legal mail. Id. at 4. In his estimation , that procedure should be “automatic.” Id. Burton, though, fails to “allege w ith specificity the steps he took” to confirm that the legal mail system was not a vailable to him at the time of h is initial filing. Yang , 525 F.3d at 930 (quotation omitted ) (finding lack of extraordinary circumstances where petitioner claiming language defic iency did “not set forth what actions he pursued to secure assistance with his language barrier inside or outside p rison”). Merely arguing that the facility should find hi s legal mail for him once it is placed in a general mailbox is not enough, particularly in light of evidence that other inmate s were able to log and mail their legal documents in the days before and immediately after August 28. See ROA at
23. Burton also argues that Robin D ickerson, the mailroom superviso r, was not at the NFCC the week Burton mailed hi s original petition. COA Petitio n at 4. He argues that her absence accounted for his leg al mail not appearing on the O utgoing Legal Mail Log.7 But again, the Log unde rmines Burton’s claim: four NFCC inmates had legal mail logged on August 26, 2017, and seventeen had legal mail logged on Augu st 29. ROA 23–24. Without specific facts supporti ng either a claim of extraordina ry circumstances or due diligence, the district court correctly concluded that Burt on failed to show that equitable tolling should be app lied. Dist. Ct. Op. at 10. Bec ause reasonable jurists would not debate the correctness of the district court’s conclusion, we decline to grant Burton a COA on this issue.
V. Based on the foregoing, we DENY Burton’s request for a COA and DISMISS this appeal.

Entered for the Court

Allison H. Eid Circuit Judge