No. 5:18-CV-01139-SLP (W.D. Okla.)
CARSON, BALDOCK, and MURPHY, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy Circuit Judge.
Lofton Amier Gray, an Oklahoma state prisoner proceeding
pro se, seeks a certificate of appealability
("COA") so he can appeal the district court's
dismissal of the habeas corpus petition he filed pursuant to
28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A) (providing no appeal may be taken from a final
order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Gray's motion to proceed
in forma pauperis on appeal is
state convictions for first degree murder, larceny of an
automobile, and attempted larceny of an automobile became
final on November 8, 2017. At the time Gray filed his federal
habeas petition on November 19, 2018, the one- year
limitations period set out in the Antiterrorism and Effective
Death Penalty Act ("AEDPA") had expired.
See 28 U.S.C. § 2244(d) (setting forth a
statute of limitations for § 2254 petitions). In a
well-reasoned Report and Recommendation, a federal magistrate
judge concluded Gray could not take advantage of the prison
mailbox rule because he failed to comply with its
requirements. See Price v. Philpot, 420 F.3d 1158,
1165 (10th Cir. 2005) ("[A]n inmate must establish
timely filing under the mailbox rule by either (1) alleging
and proving that he or she made timely use of the
prison's legal mail system if a satisfactory system is
available, or (2) if a legal system is not available, then by
timely use of the prison's regular mail system in
combination with a notarized statement or a declaration under
penalty of perjury of the date on which the documents were
given to prison authorities and attesting that postage was
filed written objections to the Report and Recommendation,
asserting entitlement to statutory tolling because a
prison-wide lockdown on the last day of the one-year
limitations period prevented him from filing a timely habeas
application. See 28 U.S.C. § 2244(d)(1)(B)
(providing that the one-year AEDPA limitations period begins
to run on the later of the date the judgment of conviction
became final or "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" (emphasis added)).
After considering Gray's objections, the district court
concluded Gray was not entitled to an extension of the
limitations period under 28 U.S.C. § 2244(d)(1)(B)
because he failed to show the lockdown was not related to
legitimate penological interests and, thus, could not show it
was an unconstitutional impediment. Cf. Lewis v.
Casey, 518 U.S. 343, 361 (1996) (involving a claim that
the failure to provide prisoners with adequate law libraries
implicated the prisoners' constitutional right of access
to the courts); Akins v. United States, 204 F.3d
1086, 1090 (11th Cir. 2000) (addressing whether a federal
prisoner was entitled to statutory tolling under 28 U.S.C.
§ 2255(f)(2) because a prison lockdown prevented him
from accessing the law library); see also Pfeil v.
Everett, 9 F.App'x 973, 978 (10th Cir. 2001)
(unpublished disposition relying on Akins to
conclude that a state prisoner claiming a lockdown was an
impediment under § 2244(d)(1)(B) must present evidence
the lockdown was not related to legitimate penological
interests). Accordingly, the district court concluded
Gray's § 2254 application was filed outside the
one-year limitations period established by the AEDPA and
dismissed it as untimely.
entitled to a COA, Gray must show "that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (holding that when a
district court dismisses a habeas petition on procedural
grounds, a petitioner is entitled to a COA only if he shows
both that reasonable jurists would find it debatable whether
he had stated a valid constitutional claim and debatable
whether the district court's procedural ruling was
correct). In his COA application and appellate brief, Gray
does not address the district court's conclusion he is
not entitled to statutory tolling under 28 U.S.C. §
2244(d)(1)(B). Instead, he asserts he is entitled to
equitable tolling and the benefit of the prison mailbox rule.
These arguments were not specifically raised in Gray's
objections to the magistrate judge's Report and
Recommendation. Under this court's firm-waiver rule,
Gray's failure to raise these specific objections
"waives appellate review of both factual and legal
questions." Casanova v. Ulibarri, 595 F.3d
1120, 1123 (10th Cir. 2010) (quotations omitted).
Accordingly, we do not review whether a COA should be granted
on either of the bases raised for the first time in
Gray's appellate filings.
reviewing Gray's appellate brief and application for COA,
the district court's order, the Report and
Recommendation, and the entire record on appeal pursuant to
the framework set out by the Supreme Court, we conclude Gray
is not entitled to a COA. Our review demonstrates that the
district court's dismissal of Gray's § 2254
petition as untimely is not deserving of further proceedings
or subject to a different resolution on appeal. Thus, Gray
has not "made a substantial showing of the denial of a
constitutional right" and is not entitled to a COA. 28
U.S.C. § 2253(c)(2).
court denies Gray's request for a COA
and dismisses this appeal.
Neither exception to the firm waiver
rule applies in this matter. See Morales-Fernandez v.
INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (holding the
firm waiver rule does not apply "when (1) a pro
se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when