FILED

United States Court of Appeals

Tenth Circuit

July 9, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES JOHNNY JONES,

Petitioner - Appellant,

v.

MICHAEL K. ADDISON, Warden,

Respondent - Appellee.

No. 10-6059

(D.C. No. 5:09-CV-01231-R)

(W.D. Okla.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Petitioner-Appellant James Johnny Jones, an Oklahoma state inmate

proceeding pro se, seeks a certificate of appealability (“COA”) allowing him to

appeal the district court’s treatment of his hybrid 28 U.S.C. §§ 2241 and 2254

habeas petition: the court denied the § 2241 petition and dismissed the § 2254

petition. Mr. Jones fails to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, we deny his request for

a COA, and dismiss the appeal. 

Mr. Jones’s federal habeas petition arises from his state application to

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*

 Mr. Jones has supplied neither his state court application nor the order

disposing of it. Therefore, we rely on his representations. 

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pursue an out-of-time appeal. R. 10-11.* According to Mr. Jones, his state

application claimed that he could not pursue post-conviction relief in a timely

fashion because prescription medication incapacitated him for nearly seven years. 

Id. at 11-12. The state district court denied Mr. Jones’s application, and

sanctioned him 720 earned good time credits for filing a frivolous claim. Id. at 4,

19. The Oklahoma Court of Criminal Appeals affirmed. Id. at 19. The federal

magistrate judge understood Mr. Jones’s habeas petition as challenging both the

denial of the state application and the sanction, and treated it as both a § 2241

petition challenging the execution of his sentence and a § 2254 challenge to his

conviction. Id. at 20, 23-25. The magistrate recommended the denial of the §

2241 petition, finding a reasonable basis for the sanction, and the dismissal of the

§ 2254 petition, deeming it time-barred. Id. at 22-25. The district court adopted

the magistrate’s report, denied the § 2241 petition, and dismissed the § 2254

petition. Id. at 33-34.

For the most part, Mr. Jones’s COA application and appellate brief present

substantive challenges to his conviction which were missing from his habeas

petition. COA Application 2-3. Generally, we do not review issues presented for

the first time on appeal, and Mr. Jones gives us no reason to do so here. See

Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009). 

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Mr. Jones’s application presents one issue appropriate for our review: he

argues that his § 2254 petition was not subject to dismissal as a second or

successive petition. COA Application 3. A COA should not issue unless “jurists

of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and . . . 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). Although the magistrate labeled Mr.

Jones’s petition “successive,” R. 24, the district court dismissed it as time barred,

id. at 34. The magistrate judge’s reasoning was sound: Mr. Jones’s previous

habeas petition was time barred when it was filed more than seven years ago. His

current petition is still time barred, unless he can show extraordinary

circumstances for equitable tolling. Holland v. Florida, — S. Ct. —, 2010 WL

2346549, at *12 (June 14, 2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998). Finding Mr. Jones’s alleged mental incapacity to be “clearly without

merit,” the magistrate judge found his petition ineligible for equitable tolling. R.

24-25. In light of his frequent litigation since the statute of limitations began

running, a reasonable jurist would not debate that Mr. Jones’s claim is time barred

and ineligible for equitable tolling.

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We DENY a COA, DENY appellant’s motion seeking leave to proceed in

forma pauperis as moot, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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