UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ SHAWN MURRELL, Petitioner - Appellant,

v. SCOTT CROW, Respondent - Appellee. No. 19-5051 (D.C. No. 4:18-CV -00341-JHP-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Oklahoma state prisoner Shawn Mu rrell sought relief under 28 U. S.C. § 2254. The district court dismissed Murrell’s petition, concluding it was time-barred under 28 U.S.C. § 2244(d)(1). Proceedi ng pro se, Murrell now seeks a certificate of appealability (COA) so he can app eal the district court’s order

. 1 See 28 U.S.C. § 2253(c)(1)(A). For the reasons discussed below, we deny Murre ll’s COA request and dismiss this matter.

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collateral estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Murrell’s pro se filings. But we will no t act as his advocate by, e.g., formulating po ssible arguments or combing th e record for support. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 ( 10th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### October 22, 2019
Elisabeth A. Shumaker Clerk of Court2 Background In August 2014, Murrell pleaded guilty in Oklahoma state court to one count each of assault and battery with a dangerous weapon and using a vehicle to facilitate the discharge of a weapon. On Oc tober 13, 2014, the state trial court imposed a twenty-year prison sentence. Mu rrell did not immediately move t o withdraw his plea or otherwise seek to appeal his conviction or sentence. But on May 21, 2015, he filed an application for postconviction relief in state district cour t, asserting that (1) he was entitled to an out-of-time direct appeal; (2) he received ineff ective assistance of counsel (IAC) during his plea pr oceedings; and (3) the state tr ial court lacked subject-matter jurisdicti on to accept his plea. The state district court denied Murrell’s first application fo r postconviction relief on September 26, 2016 an d recommended denying Murrell’s request for an outof-time direct appeal on that s ame date. Again, Murrell did not appeal. Instead, on October 5, 2016, he asked the st ate district court to review or modify his sentence.
See Okla. Stat. Ann. tit. 22, § 982a. T he state district court deni ed Murrell’s request on November 2, 2016. Murrell then filed a second appl ication for state postconvicti on relief on May 4, 2017, this time seeking leav e to appeal out-of-time the stat e district court’s September 26, 2016 order denying his first application for post conviction relief. The state district court recommende d granting Murrell’s request, an d the Oklahoma Court of Criminal Appeals (OCCA) accep ted that recommendation on July 28, 2017. The OCCA then reviewed the state dis trict court’s September 26, 201 6 order denying3 Murrell’s first motion for postc onviction relief, concluded tha t Murrell failed to demonstrate he was entitled to a n out-of-time direct appeal, an d affirmed the state district court’s September 26, 2016 order on November 21, 2017. After his efforts to obtain pos tconviction relief in state cou rt proved unsuccessful, Murrell filed the underlying § 2254 petition in f ederal district court on June 29, 2018. He asserted that (1) he was “denied a direct app eal through no fault of [his] own due to the ineffectiv eness of trial counsel”; (2) cou nsel was likewise ineffective during the plea proc eedings; and (3) the state tria l court lacked subjectmatter jurisdiction to accept hi s guilty plea. R. vol. 1, 9. Th e state moved to dismiss Murrell’s § 2254 petition, ar guing it was time-barred. See § 2244(d)(1) (“A 1-year period of limitation sh all apply to an application for a writ o f habeas corpus by a person in custody pursuant to th e judgment of a State court.”). The district court agreed with the state. Specifically, the co urt ruled that (1) Murrell’s convictions became final on October 23, 2014; (2) the one-year limitation period therefore began to run the next day, on Octob er 24, 2014; (3) 209 days elapsed before Murrell filed his first application for sta te postconviction relief on May 21, 2015; (4) Murrell was entitled to statutory tolling for the period between May 21, 2015, and October 29, 20 16—the day after the time for a ppealing the state district court’s orde r denying his first a pplication for state postconviction relief expired, see § 2244(d)(2) (providing that tim e during which certain motions are4 pending does not count tow ard one-year period); 2 (5) as of October 29, 2016, Murrell had 156 days remaining—until Apr il 3, 2017—in which to file a t imely § 2254 petition; 3 and therefore (6) Murrell’s J une 28, 2018 petition was untimel y. The district court then addresse d and rejected each of Murrell ’s four arguments for “excus[ing] the untimelines s of his petition.” R. vol. 1, 1 41. First, the court ruled that § 2244(d)(1) contains no ex ception for “habeas claim[s] ba sed on a trial court’s alleged lack of subject[- ]matter jurisdiction.” Id. at 142 (quoting Lockett v. Rudek , No. CIV-11-184-R, 2011 WL 26342 16, at *2 (W.D. Okla. June 14, 2 011)). Second, the court ruled that § 2244(d)(1 ) does not violate the Suspensi on Clause of the United States Constitution. Third, it c oncluded that § 2244(d)(1) appl ied to Murrell’s § 2254 petition because—although § 2244( d) is part of the Antiterroris m and Effective Death Penalty Act (AEDPA) of 1996, and although Murrell was neither c onvicted of terrorism nor sentenced to deat h—the plain language of § 2244(d ) states that it applies to “an application for a writ of habeas corpus [filed] by a person in custody pursuant to the judgment of a [s] tate court.” § 2244(d)(1). Fou rth, it ruled that Murrell was not entitled to equita ble tolling because “he fail[ ed] to describe any

2 In reaching this conclusion, the federal district court assume d that Murrell’s October 5, 2016 motion for judici al review of his sentence cons tituted a motion for “collateral review” but ruled tha t the motion nevertheless did not toll the one-year clock because it was not “properl y filed.” § 2244(d)(2) (“The t ime during which a properly filed application for . . . collateral review . . . is pending shall not be counted toward any period of limitat ion under this subsection.”). 3 Because Murrell did not file his second application for state postconviction relief until after the April 3 , 2017 deadline had already expir ed, the district court ruled “this application also h ad no tolling effect.” R. vol. 1, 141.5 extraordinary circumst ances that prevented him from filing a pe tition before his April 3, 2017 deadline.” R. vol. 1, 143 . Accordingly, the district co urt granted the state’s motion to dismiss M urrell’s petition as time-barred. Analysis Murrell now seeks a COA from this court so he can appeal the di strict court’s order. See § 2253(c)(1)(A). We will grant hi s COA request only if he can m ake “a substantial showing of the den ial of a constitutional right.” § 2253(c)(2). To make the requisite showing here, Murrell mu st demonstrate, among other t hings, that reasonable jurists could debate “ whether the district court was correct” in ruling that Murrell’s petition is time-barred. Slack v. McDaniel , 529 U.S. 473, 483–84 (2000) (setting forth standard that a pplies to COA request when distri ct court denies petition on procedural grounds, “without r eaching [petitioner’s] underly ing constitutional claim[s]”). In asserting he can satisfy thi s standard, Murrell advances fou r arguments. First, he insists that because a litigant can gen erally challen ge a court’s subjectmatter jurisdiction at any time , § 2244(d)(1) does not apply to his claim that the trial court lacked jurisdiction to accept his plea. In support, he no tes that “habeas corpus relief is available in a crimi nal prosecution if it be found th at the trial court had no jurisdiction to try the petit ioner.” Aplt. Br. 4 (citing Bowen v. Johnston , 306 U.S. 19, 24 (1939)). We do not disagree. See Yellowbear v. Wyo. Atty. Gen. , 525 F.3d 921, 924 (10th Cir. 2008) (“Absence of jurisdiction in the convictin g court is indeed a basis for federal habeas corpus relief cognizable under the due process clause.”). But6 “[a]s with any other habeas claim ,” Murrell’s due-process claim “is subject to dismissal for untimeliness.” Morales v. Jones , 417 F. App’x 746, 749 (10th Cir. 2011) (unpublished). Further, the Supreme Court has expressly h eld that when a district court denies habeas rel ief on procedural grounds, we m ay “dispose of” the petitioner’s subsequent COA reque st without considering the mer its of his or her underlying constitutional claims. Slack , 529 U.S. at 485. Thus, we see no indication that the jurisdictional nature of Murrell’s due-p rocess claim s hould guide our COA inquiry here. Accordingly, we de ny his request for a COA on thi s issue. Second, Murrell argues the dist rict court erred in relying on o ur nonbinding decision in Long v. Miller , 541 F. App’x 800, 802 (10th Ci r. 2013) (unpublished), to reject his assertion that applyi ng § 2244(d)(1) violates the Su spension Clause. More specifically, he dis tinguishes between first and original habeas petitions such as his and second or successive habeas petitions. And he insists that although the latter “may be time-barred under [AEDPA],” the former may not. Although we have recognized that “[t]here may be circumstances where the limitation period at least raises serious constitutional questi ons and possibly renders the habeas remedy inadequate and ineffective,” we have declined to adopt the brightline rule Murrell a dvocates for here. Miller v. Marr , 141 F.3d 976, 977 –78 (10th Cir. 1998) (rejecting petitioner’s arg ument that “one-year limitatio n on filing a first habeas petition violated the Sus pension Clause” because petitio ner failed to “demonstrate inadequacy and ineff ectiveness” of habeas remedy u nder circumstances of particular case (emphasis a dded)). And because Murrell makes no effort to show7 how the district court “render[ed ] the habeas remedy inadequate and ineffective” by applying § 2244(d)(1) to the parti cular “circumstances” of his case, he fails to show reasonable jurists could debate t he district court’s ruling rej ecting his Suspension Clause argument. Id. at 978. Third, Murrell asserts that because he is not a terrorist and h as not been sentenced to death, AEDPA’s one -year time limit does not apply to his petition. But as the district court pointed out, this argument overlooks the plain language of § 2244(d), which applies to “an a pplication for a writ of habea s corpus [filed] by a person in custody pursuant to th e judgment of a [s]tate court.” § 2244(d)(1). Accordingly, we decline to g rant a COA on this issue. Fourth, Murrell argues he is en titled to equitable tolling beca use he diligently pursued his claims and “extraord inary circumstances . . . preve nted him from filing.” Aplt. Br. 9. But the only allege dly extraordinary circumstance he identifies is his lack of access to legal assistance in the form of a “trained or expe rienced law clerk[],” an “inmate ‘legal assista nt,’” or an attorney. Id. And “neither a plain tiff’s unfamiliarity with the legal process nor . . . l ack of representation during the applicable filing period merits equitable tolling.” Turner v. Johnson , 177 F.3d 390, 392 (5th Cir. 1999); see also, e.g. , United States v. Galindo , 406 F. App’x 322, 324 (10th Cir. 2011) (unpublished) (rejecting petitioner’s argument that lack of access to “Spanishspeaking law clerk” entitled h im to equitable tolling). Thus, w e deny Murrell’s request for a COA on this issue.8 Conclusion Because Murrell fails to demonstr ate reasonable jurists could d ebate the correctness of the district cour t’s procedural ruling, we deny his COA request and dismiss this matter.

Entered for the Court

Nancy L. Moritz Circuit Judge