UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSE MANUEL DIAZ, 

 Petitioner - Appellant, 

v. 

STEVEN HARPE, 

 Respondent - Appellee. 

No. 23-5105 

(D.C. No. 4:22-CV-00457-TCK-SH) 

(N.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before McHUGH, MURPHY, and CARSON, Circuit Judges. 

_________________________________ 

This matter is before the court on Jose Manuel Diaz’s pro se request for a 

certificate of appealability (“COA”). Diaz seeks a COA so he can appeal the 

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas 

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a 

final order denying habeas corpus relief unless the petitioner first obtains a 

COA); id. § 2244(d) (setting out a one-year statute of limitations as to habeas 

corpus petitions). Because Diaz has not “made a substantial showing of the denial 

*

This order is not binding precedent except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 4, 2024

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 1
2 

of a constitutional right,” id. § 2253(c)(2), this court denies his request for a 

COA and dismisses this appeal. 

In his § 2254 habeas petition, Diaz seeks to challenge his 2018 Oklahoma 

state conviction for assault and battery with a deadly weapon.1 Relying on the 

Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Diaz 

challenges the validity of his convictions. The district court dismissed Diaz’s 

petition as untimely, 28 U.S.C. § 2244(d)(1), concluding Diaz was not entitled to 

either statutory or equitable tolling. 

Diaz seeks a COA so he can appeal the district court’s dismissal of his 

§ 2254 petition. To be entitled to a COA, he must make “a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, he must 

demonstrate “reasonable jurists could debate whether (or, for that matter, agree 

that) the petition should have been resolved in a different manner or that the 

issues presented were adequate to deserve encouragement to proceed further.” 

1On January 11, 2018, an Oklahoma state jury convicted Diaz of violating 

Okla. Stat. tit. 21, § 652(C) (2011). Diaz was sentenced to thirty years’ 

imprisonment. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the 

conviction and sentence in an unpublished opinion on August 29, 2019. Diaz 

sought post-conviction relief in state court via a June 15, 2021, application for 

post-conviction relief. He argued Oklahoma lacked “jurisdiction” over his crime. 

The state trial court denied relief on July 21, 2021. Diaz filed an untimely appeal 

from this order; the OCCA issued an order declining jurisdiction on October 18, 

2021. Nearly three months later, Diaz sought a recommendation for an out-oftime appeal. The state trial court concluded a late appeal was unwarranted. The 

OCCA issued an order denying Diaz’s request on August 1, 2022. 

Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 2
3 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). Diaz has 

not made the requisite showing. 

As this court’s recent decisions make clear, McGirt’s focus on a question 

of federal-versus-state jurisdiction does not alter the conclusion that the one-year 

limitations period set out in § 2244(d)(1)(A), rather than the ones set out in 

§ 2244(D)(1)(C) and/or (D), applies to McGirt-based challenges to the validity of 

state convictions. Warnick v. Harpe, No. 22-5042, 2022 WL 16646708, at *2-3 

(10th Cir. Nov. 3, 2022); Owens v. Whitten, No. 22-5106, 2022 WL 17972141, at 

*1 (10th Cir. Dec. 28, 2022)2; Pacheco v. El Habti, 62 F.4th 1233, 1240-41 (10th 

Cir. 2023). Furthermore, Diaz conceded in the district court that he is not entitled 

to statutory tolling pursuant to § 2244(d)(2). Thus, pursuant to § 2244(d)(1)(A), 

the limitations period ran unabated from November 28, 2019,3 until it expired one 

year later, on November 30, 2020. Thus, the district court’s conclusion that 

Diaz’s instant § 2254 petition, filed on October 14, 2022, is untimely is not 

reasonably debatable. 

In addition, no reasonable jurist could conclude the district court acted 

outside the bounds of its substantial discretion in ruling that Diaz’s lack of 

2This court recognizes that Warnick and Owens are unpublished and, thus, 

not binding precedent. Nevertheless, the analyses set out therein are completely 

persuasive and this panel adopts them in their entirety. See Tenth Cir. R. 32.1. 

3On this date, the ninety-day period for seeking a writ of certiorari from the 

United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1272 

(10th Cir. 2001). 

Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 3
4 

diligence, together with his inability to demonstrate the existence of exceptional 

circumstances, foreclosed his claimed entitlement to equitable tolling. Holland v. 

Florida, 560 U.S. 631, 645 (2010) (noting equitable tolling is available in rare 

circumstances, but concluding a petitioner must demonstrate reasonable diligence 

to be entitled to its benefits); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir 

2003) (holding that this court reviews a district court decision on equitable tolling 

for abuse of discretion). Nor could a reasonable judge debate the district court’s 

conclusion that Diaz’s merits-based jurisdictional arguments do not implicate 

“actual innocence.” Pacheco, 62 F.4th at 1241-46 (explaining at length why 

arguments about a lack of state court jurisdiction do not implicate the actualinnocence doctrine). 

Diaz’s request for a COA is DENIED and this appeal is DISMISSED. 

Entered for the Court 

Michael R. Murphy 

Circuit Judge 

Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 4