FILED

United States Court of Appeals

Tenth Circuit

August 17, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY JAMES HARVEY,

Petitioner - Appellant,

v.

MIKE ADDISON, Warden;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents - Appellees.

No. 10-6089

(D.C. No. 10-CV-00008-C)

(W.D. Okla.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Petitioner-Appellant Timothy James Harvey, a state inmate proceeding pro

se, seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order dismissing his petition for a writ of habeas corpus as untimely. To

obtain a COA, Mr. Harvey must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S.

473, 483-84 (2000). Because Mr. Harvey has not made the requisite showing, we

deny a COA and dismiss the appeal. 

On April 4, 2006, Mr. Harvey pled guilty in Oklahoma state court to two

counts of sexual abuse of a child, and two counts of unlawful possession of

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controlled substances with intent to distribute. R. 3, 139. Mr. Harvey received

sentences of twenty-five years’ imprisonment on each count, to be served

concurrently. Id. at 3. Mr. Harvey did not directly appeal his convictions, but

instead filed a state application to pursue an out-of-time appeal on March 11,

2009. Id. at 3, 139. The state district court denied the application in April 2009,

and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed in July 2009. 

Id. at 4-5, 140. 

Filed January 4, 2010, Mr. Harvey’s federal habeas petition raised six

grounds for relief, including ineffective assistance of counsel. Id. at 3-12. In his

petition, Mr. Harvey argued that the one-year statute of limitations should not bar

his petition because: (1) he did not learn that he would have to serve 85% of his

sentence to be eligible for parole until the publication of an OCCA decision on

May 4, 2007; (2) his trial counsel would not file a direct appeal; and (3) his

prison legal resources are inadequate (the law library “is restricted to next to no

time,” the library staff cannot provide legal assistance, and the prison discourages

jailhouse lawyering). Id. at 11. 

The magistrate judge found Mr. Harvey’s petition untimely, as it was filed

more than three years after his state judgment became final. Id. at 141-43. The

magistrate did not find the petition eligible for either statutory or equitable

tolling. Id. at 143-47. Over Mr. Harvey’s objections, the district court adopted

the magistrate’s report and recommendation and dismissed the petition as

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untimely. Id. at 149-59. 

In his application for a COA and accompanying brief, Mr. Harvey

essentially restates his objections to the magistrate judge’s report. He argues that

his deprivation of effective trial counsel was a procedural default attributable to

the state, and thus a state-created impediment which tolls AEDPA’s statute of

limitations under 28 U.S.C. § 2244(d)(1)(B). Pet. Br. at 2-7 (citing Murray v.

Carrier, 477 U.S. 478, 488 (1986); Jackson v. Shanks, 143 F.3d 1313, 1318-19

(10th Cir. 1998); Breechen v. Reynolds, 41 F.3d 1343, 1343, 1363-64 (10th Cir.

1994); Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th Cir. 1988)). Further, Mr.

Harvey argues that the “deni[al of] access to the prison law library” and

“‘meaningful legal assistance’ from prison law clerks” are also defaults

attributable to the state. Id. at 2. “When the district court denies a habeas

petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows, at least, that

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

of the denial of a constitutional right and . . . whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484. 

Reasonable jurists cannot debate the correctness of the district court’s

procedural ruling for several reasons. At the threshold, we barely recognize Mr.

Harvey’s § 2244(d)(1)(B) argument in his original habeas petition or brief: the

introduction to the brief accompanying the petition claimed that Mr. Harvey “was

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prevented from filing his action by actions of the State and that the impediment

created by State action is in violation of the Constitution . . . ,” without any

further elaboration. Id. at 18. Generally, “theories raised for the first time in

objections to the magistrate judge’s report are deemed waived.” United States v.

Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Indeed, besides Mr. Harvey’s

late discovery that he would have to serve 85% of his sentence to be eligible for

parole, the magistrate found that Mr. Harvey had “not alleged anything else to

suggest” that § 2244(d)(1)(B) applies to his petition. R. 142. Nonetheless, even

if we give Mr. Harvey’s petition a most liberal construction, look past “confusion

of various legal theories,” and review the petition for “sufficient facts on which a

recognized legal claim could be based,” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991), he is not entitled to a COA.

First, the district court did not rely on any state procedural default in

dismissing the petition, but rather the federal statutory time bar under § 2244(d). 

The bulk of the legal argument and citations in the COA brief applies to situations

in which state courts deem a claim procedurally barred for some reason, like

failure to raise the claim on direct appeal. See Jackson, 143 F.3d at 1317-18. 

Federal courts typically do not review such “procedurally defaulted” issues, id.;

Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006), but may excuse the bar

where one of the defaulted claims alleged ineffective assistance of appellate

counsel. Hammon, 466 F.3d at 926. Because the district court’s dismissal did not

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depend on a state procedural bar, this line of cases is inapposite. 

Second, Mr. Harvey has not shown how the allegedly deficient library

facilities and law clerks constituted a state-created impediment, in violation of the

Constitution, to filing a timely habeas petition. The Constitution does not

guarantee prisoners “an abstract, freestanding right to a law library or legal

assistance,” but only a “right of access to the courts.” Lewis v. Casey, 518 U.S.

343, 350-51 (1996). To establish a violation of the constitutional right to access

to the courts, Mr. Harvey must allege with some specificity how the state actually

hindered his access “and the steps he took to diligently pursue his federal claims.” 

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (citing Lewis, 518 U.S. at 349-

50). Mr. Harvey has not provided anything more than generalized allegations of

restricted access. Further, as the magistrate observed, Mr. Harvey did not

diligently pursue his claims: he “became aware of the 85% requirement in May

2007,” but did not file his federal petition for another two-and-a-half years. R.

142. 

Finally, we do not review the district court’s findings regarding statutory

tolling under § 2244(d)(1)(A), (D), or equitable tolling because Mr. Harvey

abandoned those issues in his COA application and brief. See Pet. Br. at 6-7; cf.

Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Because Mr. Harvey has not

shown that the statute of limitations was tolled under § 2244(d)(1)(B), reasonable

jurists could not debate the district court’s dismissal for untimeliness. 

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We DENY a COA and DISMISS the appeal. 

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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