FILED

United States Court of Appeals

Tenth Circuit

June 2, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVIS JOHN GOBERT,

Petitioner - Appellant,

v.

GREG PROVINCE, Warden,

Respondent - Appellee.

No. 10-6008

(D. Ct. No. 5:09-CV-01368-C)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Davis John Gobert, an Oklahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal from the dismissal of his habeas petition

brought pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as

untimely. We take jurisdiction under 28 U.S.C. § 1291, DENY Mr. Gobert’s request for

a COA, and DISMISS this appeal.
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I. BACKGROUND

Mr. Gobert pleaded guilty to one count of first-degree murder and one count of

second-degree murder on April 21, 2003. The same day, he was sentenced to consecutive

sentences of life imprisonment and twenty-five years’ imprisonment with five years

suspended, respectively. Mr. Gobert did not appeal his convictions or sentences. On July

23, 2009, however, Mr. Gobert filed an Application for Post Conviction Relief/Appeal

Out of Time, which was denied on July 28, 2009. On December 15, 2009, Mr. Gobert

filed the instant petition for habeas corpus relief under 28 U.S.C. § 2254. The district

court dismissed the petition as barred by the one-year limitations period governing § 2254

claims, see 28 U.S.C. § 2244(d)(1), and denied Mr. Gobert’s application for a COA. Mr.

Gobert now seeks a COA from this court.

II. DISCUSSION

A state petitioner may not appeal from the denial of a § 2254 petition without first

obtaining a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant

has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). 

When, as is the case here, the district court denies the petition on procedural grounds, we

will issue a COA only if the petitioner demonstrates “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We conclude that

the district court was clearly correct in its procedural ruling that Mr. Gobert’s petition is
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untimely. 

A one-year statute of limitations governs § 2254 petitions. 28 U.S.C. § 2244(d)(1).

In general, the period begins to run on the date that the petitioner’s conviction and

sentence “bec[omes] final by the conclusion of direct review or the expiration of the time

for seeking such review.” Id. § 2244(d)(1)(A). In this case, Mr. Gobert pleaded guilty

and was sentenced on April 21, 2003. He did not move to withdraw his guilty pleas, file

a direct appeal, or seek a writ of certiorari from the United States Supreme Court. As a

result, Mr. Gobert’s convictions and sentences became final ten days later, on May 1,

2003. See Okla. Crim. App. R. 2.5(A) & 4.2(A); see also Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006). Accordingly, Mr. Gobert had until approximately May 1, 2004

to file a § 2254 petition, rendering his December 2009 filing well outside the limitations

period. 

The fact that Mr. Gobert filed an Application for Post Conviction Relief/Appeal

Out of Time in July 2009 does not change this result. First, although the filing of a state

motion for post-conviction relief tolls the § 2244(d)(1)(A) limitations period, see 28

U.S.C. § 2244(d)(2), no tolling occurred here because Mr. Gobert’s state motion for postconviction relief was filed after the § 2241(d)(1)(A) limitations period had already

expired. Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001). Second, because

the Oklahoma courts denied Mr. Gobert’s request to appeal out of time, these proceedings

do not count toward the direct review process for purposes of § 2244(d)(1)(A). See

Orange v. Calbone, 318 F.3d 1167, 1170–71 (10th Cir. 2003) (holding that the granting
1

Mr. Gobert also appears to argue that the Oklahoma Court of Criminal Appeals

erred in denying his Application for Post Conviction Relief/Appeal Out of Time. He has

not, however, indicated how the denial violates his constitutional or federal rights, which

is a prerequisite to any claim pursued in a § 2254 petition. See 28 U.S.C. § 2254(a).

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of an application to file an appeal out of time is considered part of the direct appeal

process under Oklahoma law).1

 

Nor do we find a basis for equitable tolling. In “rare and exceptional

circumstances,” a court may toll the statute of limitations for equitable reasons. Garcia v.

Shanks, 351 F.3d 468, 473 n.2 (10th Cir. 2003) (quotations omitted). Such circumstances

include an inmate demonstrating that his late filing was due to circumstances beyond his

control, id., or an inmate demonstrating actual innocence. Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000). Mr. Gobert, however, has not provided any reason sufficient

to equitably toll the limitations period. 

Finally, Mr. Gobert’s contention that the Anti-Terrorism and Effective Death

Penalty Act of 1996 is an unreasonable suspension of the right to seek habeas corpus

relief in contravention of the Bill of Rights was not presented in his § 2254 petition and

therefore will not be considered here. 

III. CONCLUSION

Mr. Gobert’s request for a COA is DENIED and this appeal is DISMISSED. We 
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DENY his request to proceed in forma pauperis on appeal.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge