DAVID R. THOMAS, Petitioner - Appellant,
JUSTIN JONES, Director DOC, Respondent - Appellee.
D.C. No. 4:12-CV-00429-TCK-FHM, N.D. Okla.
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
JEROME A. HOLMES Circuit Judge
David R. Thomas, an Oklahoma state prisoner proceeding pro se,  was twice convicted of four counts of manslaughter over twenty years ago. After the first conviction was vacated, he was re-tried by a new jury and received a sentence that was forty years greater than his first sentence. Almost two decades later, he unsuccessfully sought post-conviction relief in state court and then initiated the instant habeas action under 28 U.S.C. § 2254, seeking relief in federal court. The district court denied Mr. Thomas's petition as time-barred and denied him a certificate of appealability ("COA"). Mr. Thomas now seeks a COA from our court so that he may challenge the dismissal of his habeas petition. He has also filed a motion to proceed in forma pauperis ("IFP"). We deny Mr. Thomas's request for a COA, deny his request to proceed IFP, and dismiss this matter.
In the late 1980s, Mr. Thomas was convicted by a jury of four counts of first-degree manslaughter and was sentenced to four consecutive fifteen-year terms of imprisonment. He successfully appealed, and the Oklahoma Court of Criminal Appeals ("OCCA") reversed the judgment and sentence and remanded for a new trial. At the new trial, a jury again found Mr. Thomas guilty of all four counts of first-degree manslaughter. The second time around, however, the trial court sentenced him to four consecutive twenty-five year terms of imprisonment. On direct appeal, the OCCA affirmed this judgment and sentence in an unpublished summary opinion, .
Eighteen years later, Mr. Thomas sought post-conviction relief in state court. The state trial court denied Mr. Thomas relief and the OCCA affirmed. Shortly thereafter, Mr. Thomas brought the instant petition under 28 U.S.C. § 2254 in federal district court. Respondent filed a motion to dismiss, asserting that the petition was time-barred. The district court agreed that Mr. Thomas's petition was time-barred and dismissed it with prejudice. The district court also denied Mr. Thomas a COA.
Mr. Thomas now seeks a COA from our court,  asserting only the merits argument from his habeas petition—specifically, that the increased sentence he received after his second trial was an illegal sentence under North Carolina v. Pearce, 395 U.S. 711 (1969). He does not address, let alone challenge, the district court's determination that his petition was untimely.
"[A] state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever 'the detention complained of . . . arises out of process issued by a State court.'" Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (quoting 28 U.S.C. § 2253(c)(1)(A)); see also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) ("Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA . . . ."). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted); accord Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting 28 U.S.C. § 2253(c)(2)). "To make such a showing, an applicant must demonstrate 'that 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.'" Harris, 642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
"If the application was denied on procedural grounds, the applicant faces a double hurdle." Coppage, 534 F.3d at 1281. This is because when there has been such a denial "a COA should issue only when the prisoner shows 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.'" Sigala v. Bravo, 656 F.3d 1125, 1126 (10th Cir. 2011) (quoting Slack, 529 U.S. at 484) (emphasis added).
As set out above, the district court denied Mr. Thomas's petition as time-barred, and Mr. Thomas has not challenged this conclusion in his briefing before us. This failure is fatal to Mr. Thomas's request for a COA; we could deny his request on this ground alone. See United States v. Sandoval, 371 F.App'x 945, 948–49 (10th Cir. 2010) (denying the petitioner's request for a COA, where the petitioner "d[id] not address the district court's reasoning for dismissing his motion as untimely" but instead "focuse[d] on the substantive arguments he made in his original [habeas] petition"); cf. Small v. Milyard, 488 F.App'x 288, 291 (10th Cir. 2012) (concluding that the petitioner "fail[ed] to demonstrate that reasonable jurists could debate the procedural conclusion that his petition asserts unauthorized second or successive claims" where his "application for ...