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 Murrell 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). Proceeding pro se, Murrell now seeks a certificate of 

appealability (COA) so he can appeal the district court’s order.

1 See 28 U.S.C. 

§ 2253(c)(1)(A). For the reasons discussed below, we deny Murrell’s COA request 

and dismiss this matter. 

 * This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral estoppel. But it may be cited 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 not act as his 

advocate by, e.g., formulating possible arguments or combing the 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 Court
2 

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 October 13, 2014, the state trial court imposed a 

twenty-year prison sentence. Murrell did not immediately move to 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 court, asserting that (1) he was 

entitled to an out-of-time direct appeal; (2) he received ineffective assistance of 

counsel (IAC) during his plea proceedings; and (3) the state trial court lacked 

subject-matter jurisdiction to accept his plea. 

 The state district court denied Murrell’s first application for postconviction 

relief on September 26, 2016 and recommended denying Murrell’s request for an outof-time direct appeal on that same date. Again, Murrell did not appeal. Instead, on 

October 5, 2016, he asked the state district court to review or modify his sentence. 

See Okla. Stat. Ann. tit. 22, § 982a. The state district court denied Murrell’s request 

on November 2, 2016. 

 Murrell then filed a second application for state postconviction relief on May 

4, 2017, this time seeking leave to appeal out-of-time the state district court’s 

September 26, 2016 order denying his first application for postconviction relief. The 

state district court recommended granting Murrell’s request, and the Oklahoma Court 

of Criminal Appeals (OCCA) accepted that recommendation on July 28, 2017. The 

OCCA then reviewed the state district court’s September 26, 2016 order denying 
3 

Murrell’s first motion for postconviction relief, concluded that Murrell failed to 

demonstrate he was entitled to an out-of-time direct appeal, and affirmed the state 

district court’s September 26, 2016 order on November 21, 2017. 

 After his efforts to obtain postconviction relief in state court proved 

unsuccessful, Murrell filed the underlying § 2254 petition in federal district court on 

June 29, 2018. He asserted that (1) he was “denied a direct appeal through no fault of 

[his] own due to the ineffectiveness of trial counsel”; (2) counsel was likewise 

ineffective during the plea proceedings; and (3) the state trial court lacked subjectmatter jurisdiction to accept his guilty plea. R. vol. 1, 9. The state moved to dismiss 

Murrell’s § 2254 petition, arguing it was time-barred. See § 2244(d)(1) (“A 1-year 

period of limitation shall apply to an application for a writ of habeas corpus by a 

person in custody pursuant to the judgment of a State court.”). 

 The district court agreed with the state. Specifically, the court 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 October 24, 2014; (3) 209 

days elapsed before Murrell filed his first application for state postconviction relief 

on May 21, 2015; (4) Murrell was entitled to statutory tolling for the period between 

May 21, 2015, and October 29, 2016—the day after the time for appealing the state 

district court’s order denying his first application for state postconviction relief 

expired, see § 2244(d)(2) (providing that time during which certain motions are 
4 

pending does not count toward one-year period);2

 (5) as of October 29, 2016, Murrell 

had 156 days remaining—until April 3, 2017—in which to file a timely § 2254 

petition;3

 and therefore (6) Murrell’s June 28, 2018 petition was untimely. 

 The district court then addressed and rejected each of Murrell’s four arguments 

for “excus[ing] the untimeliness of his petition.” R. vol. 1, 141. First, the court ruled 

that § 2244(d)(1) contains no exception for “habeas claim[s] based 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 2634216, at *2 (W.D. Okla. June 14, 2011)). Second, 

the court ruled that § 2244(d)(1) does not violate the Suspension Clause of the United 

States Constitution. Third, it concluded that § 2244(d)(1) applied to Murrell’s § 2254 

petition because—although § 2244(d) is part of the Antiterrorism and Effective Death 

Penalty Act (AEDPA) of 1996, and although Murrell was neither convicted of 

terrorism nor sentenced to death—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). Fourth, it ruled that 

Murrell was not entitled to equitable tolling because “he fail[ed] to describe any 

 2

 In reaching this conclusion, the federal district court assumed that Murrell’s 

October 5, 2016 motion for judicial review of his sentence constituted a motion for 

“collateral review” but ruled that the motion nevertheless did not toll the one-year 

clock because it was not “properly filed.” § 2244(d)(2) (“The time during which a 

properly filed application for . . . collateral review . . . is pending shall not be counted 

toward any period of limitation 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 expired, the district court 

ruled “this application also had no tolling effect.” R. vol. 1, 141. 
5 

extraordinary circumstances that prevented him from filing a petition before his April 

3, 2017 deadline.” R. vol. 1, 143. Accordingly, the district court granted the state’s 

motion to dismiss Murrell’s petition as time-barred. 

Analysis 

Murrell now seeks a COA from this court so he can appeal the district court’s 

order. See § 2253(c)(1)(A). We will grant his COA request only if he can make “a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make the 

requisite showing here, Murrell must demonstrate, among other things, 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 applies to COA request when district court denies petition 

on procedural grounds, “without reaching [petitioner’s] underlying constitutional 

claim[s]”). 

In asserting he can satisfy this standard, Murrell advances four arguments. 

First, he insists that because a litigant can generally challenge 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 notes that “habeas corpus 

relief is available in a criminal prosecution if it be found that the trial court had no 

jurisdiction to try the petitioner.” 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 convicting court is indeed a 

basis for federal habeas corpus relief cognizable under the due process clause.”). But 
6 

“[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 held that when a 

district court denies habeas relief on procedural grounds, we may “dispose of” the 

petitioner’s subsequent COA request without considering the merits 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-process claim should guide our COA 

inquiry here. Accordingly, we deny his request for a COA on this issue. 

Second, Murrell argues the district court erred in relying on our nonbinding 

decision in Long v. Miller, 541 F. App’x 800, 802 (10th Cir. 2013) (unpublished), to 

reject his assertion that applying § 2244(d)(1) violates the Suspension Clause. More 

specifically, he distinguishes 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 questions and possibly renders 

the habeas remedy inadequate and ineffective,” we have declined to adopt the brightline rule Murrell advocates for here. Miller v. Marr, 141 F.3d 976, 977–78 (10th Cir. 

1998) (rejecting petitioner’s argument that “one-year limitation on filing a first

habeas petition violated the Suspension Clause” because petitioner failed to 

“demonstrate inadequacy and ineffectiveness” of habeas remedy under circumstances 

of particular case (emphasis added)). And because Murrell makes no effort to show 
7 

how the district court “render[ed] the habeas remedy inadequate and ineffective” by 

applying § 2244(d)(1) to the particular “circumstances” of his case, he fails to show 

reasonable jurists could debate the district court’s ruling rejecting his Suspension 

Clause argument. Id. at 978. 

Third, Murrell asserts that because he is not a terrorist and has 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 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). 

Accordingly, we decline to grant a COA on this issue. 

Fourth, Murrell argues he is entitled to equitable tolling because he diligently 

pursued his claims and “extraordinary circumstances . . . prevented him from filing.” 

Aplt. Br. 9. But the only allegedly extraordinary circumstance he identifies is his lack 

of access to legal assistance in the form of a “trained or experienced law clerk[],” an 

“inmate ‘legal assistant,’” or an attorney. Id. And “neither a plaintiff’s unfamiliarity 

with the legal process nor . . . lack 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 him to equitable tolling). Thus, we deny Murrell’s 

request for a COA on this issue. 
8 

Conclusion

Because Murrell fails to demonstrate reasonable jurists could debate the 

correctness of the district court’s procedural ruling, we deny his COA request and 

dismiss this matter. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge