MICHAEL D. GAINES, Petitioner - Appellant,
JANET DOWLING, Respondent - Appellee.
No. 5:18-CV-00001-W (W.D. Okla.)
HARTZ, McHUGH, and CARSON, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L HARTZ, CIRCUIT JUDGE
D. Gaines, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the dismissal by
the United States District Court for the Western District of
Oklahoma of his application for relief under 28 U.S.C. §
2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring
a COA for a prisoner in state custody to appeal from the
denial of a writ of habeas corpus). We deny a COA and dismiss
January 14, 2004, Mr. Gaines pleaded guilty to first-degree
murder in the District Court for Comanche County, Oklahoma,
and was sentenced to life imprisonment without parole.
Because Mr. Gaines did not appeal or move to withdraw his
plea within the 10 days allotted under Oklahoma law, see
Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006),
his conviction became final 10 days later on January 24.
Nearly 13 years later, on October 11, 2016, Mr. Gaines filed
an unsuccessful application for state postconviction relief.
He appealed, and the Oklahoma Court of Criminal Appeals
affirmed in December 2017. On January 2, 2018, Mr. Gaines
filed his § 2254 application. He claimed that he had
uncovered evidence supporting an involuntary-intoxication
defense to the murder charge, relying on an affidavit from a
codefendant dated June 30, 2016, stating that the marijuana
he gave Mr. Gaines to smoke before the murder had-unbeknownst
to Mr. Gaines-been laced with PCP. The district court denied
Mr. Gaines's application as untimely and declined to
issue a COA. Mr. Gaines now seeks a COA from this court.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This standard requires "a
demonstration that . . . includes showing 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." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation
marks omitted). In other words, the applicant must show that
the district court's resolution of the constitutional
claim was either "debatable or wrong." Id.
If the application was denied on procedural grounds, the
applicant faces a double hurdle. Not only must the applicant
make a substantial showing of the denial of a constitutional
right, but he must also show "that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Id.
"Where a plain procedural bar is present, and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further."
reasonable jurist could debate the district court's
denial of Mr. Gaines's application as untimely. A
prisoner pursuing relief under § 2254 generally must
file his application in federal court within one year of
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." 28 U.S.C. § 2244(d)(1)(A).
For Mr. Gaines that period expired on January 24, 2005, long
before he sought relief in federal court.
time limit may be equitably tolled if the prisoner shows
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v.
Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks omitted). The only possible circumstance that would
warrant equitable tolling here would be "actual
innocence." Laurson v. Leyba, 507 F.3d 1230,
1232-33 (10th Cir. 2007). Mr. Gaines appears to disclaim
tolling on this ground, but any actual-innocence claim would
fail anyway. "[A]ctual innocence," means
"factual innocence," as opposed to legal innocence.
Id. at 1233. And the crux of Mr. Gaines's claim
appears to be that he could not assent to or participate in
the murder given his intoxication-a legal defense. See
Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000)
(claim that defendant was "not guilty of first degree
murder because he was intoxicated" went to "legal
innocence, as opposed to factual innocence"); Long
v. Peterson, 291 Fed.Appx. 209, 213 (10th Cir. 2008)
(claim that defendant "did not act with the requisite
intent, namely, malice aforethought" was not one of
Gaines does, however, assert that the start of his
limitations period was delayed under §
2244(d)(1)(B)-(D). But § 2244(d)(1)(B)-which postpones
the start of the limitations period until "the date on
which the impediment to filing an application created by
State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from
filing by such State action"-is inapplicable because Mr.
Gaines points to no state-created impediment to filing his
§ 2254 application. Likewise, he cannot rely on §
2244(d)(1)(C), which delays the start of the limitations
period until "the date on which [a] constitutional right
asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review." This provision is inapplicable because Mr.
Gaines fails to point to any "newly recognized"
constitutional right asserted in his application;
the "new" rulings in the cases he cites- Class
v. United States, 138 S.Ct. 798 (2018); Buck v.
Davis, 137 S.Ct. 759 (2017); Trevino v. Thaler,
569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1
(2012)-were not based on the Constitution.
leaves § 2244(d)(1)(D), which delays the start of the
limitations period until "the date on which the factual
predicate of the claim or claims presented could have been
discovered through the exercise of due diligence." But
Mr. Gaines has made no showing of due diligence in obtaining
the affidavit on which he relies. He does not explain how he
acquired the affidavit in 2016, nor does he provide any
explanation of why he could not have obtained it sooner. (He
suggests that this evidence was hidden from him by the
government, but he provides no evidence that the government
ever knew about the PCP.)
event, even if Mr. Gaines has satisfied § 2244(d)(1)(D),
he is still not entitled to a COA unless he makes a
"substantial showing of the denial of a constitutional
right," 28 U.S.C. § 2253(c)(2), on the
ineffective-assistance claim to which the purportedly
"new" evidence is relevant. Although Mr. Gaines
claims that his counsel was ineffective in failing to
discover before his plea the evidence that he was drugged, he
does not show how his counsel could have made the discovery.
It is unusual for counsel to interview a codefendant. And it
is highly unlikely that the codefendant would have revealed
this information to Mr. Gaines's counsel before
sentencing even if interviewed, as it would have shifted
culpability from Mr. Gaines to his codefendant (who
ultimately received a lighter sentence than Mr. Gaines did).
Further, Mr. Gaines makes no showing of prejudice from
counsel's alleged deficiency, as he does not assert that
he would not have pleaded guilty had counsel obtained this
information. See Hill v. Lockhart, 474 U.S. 52, 59
(1985) ("[I]n order to satisfy the 'prejudice'
requirement [of an ineffective-assistance claim], the
defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.");
see also United States v. Jansen, 884 F.3d 649, 659
(7th Cir. 2018) (defendant failed to show prejudice from
counsel's alleged failure to investigate when he did not
"come forward with objective evidence" that had
counsel investigated "he would not have pleaded
guilty" (internal quotation marks omitted)). This falls
well short of the "substantial showing" needed to
grant a COA. See 28 U.S.C. § 2253(c)(2).