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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on Jose Manuel Di az’s pro se request for a certificate of appealability (“COA”). Diaz seeks a C OA so he can appeal the district court’s di smissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providi ng no appeal may be taken from a final order denying ha beas corpus relief unless the petiti oner first obtains a COA); id. § 2244(d) (setting out a one-year statute of limi tations as to habeas corpus petitions). Because Di az has not “made a substant ial showing of the denial

* This order is not binding pr ecedent 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: 12 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 challeng e his 2018 Oklahoma state conviction for as sault 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 wa s 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 su bstantial s howing of the denial of a constituti onal right.” 28 U.S.C. § 2253(c )(2). That is, he must demonstrate “reasonable juri sts could debate whether (o r, for that matter, agree that) the petition should have been resolv ed in a different manner or that the issues presented were adequate to dese rve encouragement to proceed further.”

1 On January 11, 2018, an Oklahoma stat e jury convicted Diaz of violating Okla. Stat. tit. 21, § 652(C) (2011). Di az was sentenced to thirty years’ imprisonment. The Oklahoma Court of Crim inal Appeals (“OCCA”) affirmed the conviction and sentence in an unpublished opinion on August 29, 2019. Diaz sought post-conviction relief in state c ourt via a June 15, 2021, application for post-conviction relief. He ar gued Oklahoma lack ed “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 Di az’s request on August 1, 2022. Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 23 Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quotat ions omitted). Diaz has not made the requi site 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 th e 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 c onceded in the district cour t that he is not entitled to statutory tolling pursuant to § 2244( d)(2). Thus, pursuant to § 2244(d)(1)(A), the limitations period ran una bated 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 de batable. In addition, no reasonable jurist could conclude th e district court acted outside the bounds of its subs tantial discretion in ruli ng that Diaz’s lack of

2 This court recognizes that Warnick and Owens are unpublished and, thus, not binding precedent. Nevert heless, the analyses set out therein are completely persuasive and this panel a dopts them in their entirety. See Tenth Cir. R. 32.1.

3 On this date, the ninety-day period for seeking a writ of certiorari from the United States Suprem e 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: 34 diligence, together with hi s 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 equita ble tolling is available in rare circumstances, but concluding a petitioner must demonstrate re asonable diligence to be entitled to its benefits); Burger v. Scott , 317 F.3d 1133, 1138 (10th Cir 2003) (holding that this cour t reviews a district court decision on equitable tolling for abuse of discretion). No r could a reasonable judge de bate the district court’s conclusion that Diaz’s me rits-based jurisdictional arguments do not implicate “actual innocence.” Pacheco , 62 F.4th at 1241-46 (expl aining 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

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Entered for the Court
Michael R. Murphy Circuit Judge Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 4