Petition for Writ of Certiorari — Timothy Fitzgerald Tolliver, Petitioner v. Cameron Harvanek, Warden

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED

United States Court of Appeal

Tenth Circuit

September 8, 2025

Christopher M. Wolpert

Clerk of Court

TIMOTHY FITZGERALD TOLLIVER,

Petitioner - Appellant,

No. 24-6184

(D.C. No. 5:24-CV-00104-PRW)

(W.D. Okla.)

v.

CAMERON HARVANEK,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges.

Timothy Fitzgerald Tolliver seeks a certificate of appealability (COA) to appeal

the district court’s denial of his application for relief under 28 U.S.C. § 2254 as untimely.

Because no reasonable jurist could conclude that the application was timely, we deny a

COA and dismiss this matter.

I. Background

Tolliver pleaded guilty in state court to four felony charges on April 9, 2021. A

few days later, he filed a letter that the state district court construed as a motion to

withdraw the plea (the Motion). On April 20 the state district court held a hearing on the

* This order is not binding precedent except under the doctrines of law of the case,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

A

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Motion, during which Tolliver withdrew the Motion. The state district court gave

Tolliver an additional 10 days (until April 30, 2021) to file a renewed motion to withdraw

his plea. He did not do so within the 10-day window.

In July 2022, more than a year after his conviction and the withdrawal-of-plea

proceedings, Tolliver filed a renewed motion to withdraw his plea (the Renewed Motion).

The state district court denied the Renewed Motion the following January. In April 2023

Tolliver sought review in the Oklahoma Supreme Court, which transferred the matter to

the Oklahoma Court of Criminal Appeals (OCCA). The OCCA dismissed the appeal for

lack of jurisdiction.

In June 2023 Tolliver returned to the state district court and sought postconviction

relief to file an untimely appeal. The state district court denied the request in July 2023.

Tolliver appealed that decision to the OCCA, which affirmed the denial in February

2024.

Meanwhile, Tolliver filed a § 2254 application in federal district court in January

2024. The magistrate judge issued a report and recommendation concluding that the time

for Tolliver to file a § 2254 application expired in May 2022—one year after Tolliver’s

conviction became final in state court. But Tolliver did not file the application until

January 2024, rendering it untimely unless he was entitled to tolling. The magistrate

judge determined that statutory tolling was not available because Tolliver’s various

postconviction pleadings in state court were filed after the expiration of the time

permitted for filing a § 2254 application, and the magistrate judge observed that Tolliver

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did not argue that he was entitled to equitable tolling. Hence, the magistrate judge

recommended that the § 2254 application be dismissed as untimely.

Tolliver timely objected to the report and recommendation. Relevant to this

appeal, he argued that he met the criteria for equitable tolling because any procedural

deficiencies in state court were caused by constitutionally ineffective assistance of his

counsel.

After reviewing the magistrate judge’s report and recommendation and Tolliver’s

objections, the district court concluded that Tolliver had not shown that extraordinary

circumstances prevented his timely filing of the § 2254 application and that any state­

court procedural defects were irrelevant to the AEDPA time bar. The district court

adopted the report and recommendation, dismissed the § 2254 application, and denied a

COA.

II. Discussion

a. Timeliness

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires an

applicant for relief under § 2254 to obtain a COA to appeal a denial of relief. See 28

U.S.C. § 2253(c)(1)(A). We can issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). When the

district court denies a § 2254 application on procedural grounds, the applicant must show

that jurists of reason would find it debatable whether the [application] states a valid

claim of the denial of a constitutional right and that jurists of reason would find it

3

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debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

Under AEDPA a state prisoner must file a § 2254 application within a one-year

limitation period. See 28 U.S.C. § 2244(d)(1). The period begins to run on the latest of

certain dates set forth in the provision’s subsections. See § 2244(d)(l)(A)-(D). The only

date relied on by Tolliver is the date on which the judgment became final under state law.

See § 2254(d)(1)(A). In Oklahoma, absent an appeal to the OCCA, a conviction from a

guilty plea becomes final 10 days after sentencing. See Jones v. Patton, 619 F. App’x

676, 678 (10th Cir. 2015^; Okla. Stat. tit. 22, § 1051(A); Rule 4.2, Okla. Stat. tit. 22, ch.

18 app.

Tolliver filed his § 2254 application more than 20 months after the limitations

period expired. Thus, absent tolling, the application was untimely.

b. Equitable Tolling

In “rare and exceptional circumstances,” a § 2254 applicant may be entitled to

equitable tolling. Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011) (internal

quotation marks omitted). An applicant “seeking equitable tolling bears the burden of

establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Id. at 1128 (internal quotation marks

omitted).

Tolliver argues that he diligently pursued his remedies. We disagree.

After the hearing on Tolliver’s Motion, where he withdrew the Motion, the state

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nearly 15 months to file the Renewed Motion—several months after the time to file a

§ 2254 application expired. See 28 U.S.C. § 2244(d)(1)(A). Such delay is inconsistent

with a claim of diligent pursuit of available remedies.

Tolliver also does not present any extraordinary circumstances that prevented

timely filing. He asserts only that he was prevented from attending the withdrawal-of-

plea hearing. But he provides no record citations in support. Therefore, Tolliver did not

satisfy his obligations under Federal Rule of Appellate Procedure 28. See Fed. R. App. P.

28(a)(8)(A); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“Consistent

with [the requirement in Rule 28(a)(8)(A)], we routinely have declined to consider

arguments that are not raised, or are inadequately presented, in an appellant’s opening

brief.”). In any event, the record shows that he (1) was represented by counsel and

(2) signed a document withdrawing the Motion. No reasonable jurist would debate

whether the district court correctly concluded that Tolliver was not entitled to equitable

tolling.

III.

Conclusion

We deny a COA and dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

5

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Office of the Clerk

Byron White United States Courthouse

Denver, Colorado 80257

(303) 844-3157

Jane K. Castro

Chief Deputy Clerk

Christopher M. Wolpert

Clerk of Court

October 17, 2025

Timothy Fitzgerald Tolliver

DOC#616036

Howard McLeod Correctional Center

19603 East Whippoorwill Lane

Atoka, OK 74525

Re:

Your Pro Se Submission in Appeal No. 24-6184, Tolliver v. Harvanek

Dear' Mr. Tolliver:

We received your pro se “Request for Motion for Rehearing Out of Time. As you are

aware, you hired attorney James Lee Hankins to represent you on appeal.

Because Mr. Hankins has not sought to withdraw from this appeal and the court has not

granted him leave to do so, all communications to the court regarding your appeal must

come from him. The court will neither accept nor take any action regarding any filing or

correspondence it receives directly from you. Accordingly, we urge you to communicate

with Mr. Hankins directly regarding any issues related to your appeal and, by copy of this

letter, have advised him of your concerns.

You may reach Mr. Hankins at the following address, email, or phone:

James Lee Hankins

Hankins Law Office

Mon Abri Business Center

2524 North Broadway

Edmond, OK 73034

Telephone: 405-753-4150

Email: j ameshankins@ocdw.com

Fax: 405-445-4956

So long as you are represented by an attorney in this appeal, further inquiries or

submissions to this court regarding your case may not receive a response.

Sincerely,

CHRISTOPHER M. WOLPERT

Clerk of the Court

CMW/lal

cc: Janies Lee Hankins (via CM/ECF)

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°fp2 n 9

Page. 19

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

TIMOTHY FITZGERALD

TOLLIVER,

)

)

)

Petitioner,

)

)

)

v

Case No. CIV-24-00104-PRW

)

CAMERON HARVENEK,

)

)

Respondent.

)

ORDER

Before the Court is Magistrate Judge Shon T. Erwin’s Report and Recommendation

(Dkt. 6), recommending that Petitioner’s 28 U.S.C. § 2254 petition be dismissed as

untimely, and Petitioner Tolliver’s Objections (Dkt. 7).

Magistrate Judge Erwin concluded that Petitioner’s Antiterrorism and Effective

Death Penalty Act (“AEDPA”) one-year limitations period to file a § 2254 petition expired

on May 2,2022. And since Petitioner did not file this petition until June 5,2023, Magistrate

Judge Erwin concluded that it was untimely and must be dismissed. Petitioner objects that

he is entitled to equitable tolling of his AEDPA limitations period, but he offers no

“extraordinary circumstance [that] stood in his way and prevented timely filing.

Accordingly, Petitioner is not entitled to equitable tolling. Petitioner also objects that his

ineffective assistance of counsel claim demonstrates cause to excuse his failure to comply

1 Hollandv. Florida, 560 U.S. 631,649,130 S. Ct. 2549,177 L. Ed. 2d 130 (2010) (internal

quotation marks and citation omitted).

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with a state procedural rule. However, Magistrate Judge Erwin recommended dismissal of

the Petition as time-barred under AEDPA’s one-year statute of limitations rather than on

any state procedural ground.

Having reviewed the Report and Recommendation and Petitioner’s objections de

novo, the Court agrees with the Report and Recommendation’s reasoning and conclusions.

Accordingly, the Court ADOPTS the Report and Recommendation (Dkt. 6) in full,

DISMISSES the Petition (Dkt. 1) with prejudice, and DENIES AS MOOT the remaining

pending motion (Dkt. 2).2

IT IS SO ORDERED this 2nd day of August 2024.

____________

PATRICK R. WYRICK

UNITED STATES DISTRICT JUDGE

2 Before a habeas petitioner may appeal the dismissal of a section 2254 petition, he must

obtain a Certificate of Appealability (COA). See Vreeland v. Zupan, 906 F.3d 866, 875

(10th Cir. 2018) (citing 28 U.S.C. § 2253(c)(1)(A)). A COA may issue only upon "a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). “When the district

court denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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.” Slack v. McDaniel, 529 U.S. 473,

484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Upon consideration, the Court finds the

requisite showing is not met in this case. Therefore, a COA is DENIED.

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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TIMOTHY FITZGERALD TOLLIVER,

)

)

Petitioner,

)

)

v.

)

Case No. CIV-24-104-PRW

)

CAMERON HARVENEK,

)

)

Respondent.

)

REPORT AND RECOMMENDATION

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28

U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United

States District Judge Patrick R. Wyrick has referred this matter to the undersigned

magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been

promptly examined, and for the reasons set forth herein, it is recommended that the

Court DISMISS the Petition as untimely.

I.

PROCEDURAL BACKGROUND

On April 9, 2021, in Oklahoma County District Court Case No. CF-2020-1756,

Petitioner entered a guilty plea to four criminal felony charges. (ECF No. 1:1; 1-1:1).

On April 14, 2021, Mr. Tolliver filed a handwritten letter in his case which the Court

construed as a Motion to Withdraw the plea. (ECF No. 1-1:1). At an April 20, 2021

hearing on Petitioner's Motion to Withdraw, Mr. Tolliver withdrew his motion and the

Court gave him an additional ten days, or until April 30, 2021, to file a Motion to

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Withdraw. (ECF No. 1-1:1, 3); Okla. Ct. Crim. App. R. 4.2(A) ("In all cases, to appeal

from any conviction on a plea of guilty or nolo contendere, the defendant must

have filed in the trial court clerk's office an application to withdraw the plea within

ten (10) days from the date of the pronouncement of the Judgment and

Sentence[.]"). Petitioner waited until July 13, 2022, however, to file a Motion to

Withdraw, which the Oklahoma County District Court denied on January 11, 2023.

See ECF No. 1-1.

On April 10, 2023, Petitioner filed a certiorari appeal with the Oklahoma

Supreme Court, who transferred the matter to the Oklahoma Court of Criminal

Appeals (OCCA). (ECF No. 1-1:4). On April 28, 2023, in Case No. C-2023-368, the

OCCA dismissed Petitioner's appeal, finding that he had failed to properly invoke

the Court's jurisdiction. See ECF No. 1-1:4.

On June 5, 2023, in the Oklahoma County District Court, Petitioner filed an

Application for Post-Conviction relief seeking an appeal out of time, which that

court denied on July 20, 2023. See ECF No. 1-1:4. On August 14, 2023, Mr. Tolliver

filed an appeal of the district court's denial, and the OCCA denied the same on

February 23, 2024. See Application for an Appeal out of Time, Tolliver v. State of

Oklahoma, Case No. PC-2023-674 (Okla. Ct. Crim. App. Aug. 14, 2023); Order

Affirming Denial of Post-Conviction Application Requesting an Appeal out of Time,

Tolliver v. State of

2

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Oklahoma, Case No. PC-2023-674 (Okla. Ct. Crim. App. Feb. 23, 2024).1 On

January 29, 2024, Mr. Tolliver filed a habeas Petition in this Court. (ECF No. 1).

II.

SCREENING REQUIREMENT

Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required

to promptly examine a habeas petition and to summarily dismiss it "(i]f it plainly

appears from the petition and any attached exhibits that the petitioner is not entitled

to relief. . . ." Rule 4, Rules Governing § 2254 Cases. "[B]efore acting on its own

initiative, a court must accord the parties fair notice and an opportunity to present

their positions." Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such

notice by this Report and Recommendation, and she has an opportunity to present her

position by filing an objection to the Report and Recommendation. Further, when

raising a dispositive issue sua sponte, the district court must "assure itself that the

petitioner is not significantly prejudiced ... and determine whether the interests of

justice would be better served by addressing the merits. . .

Id. (quotations

omitted); Thomas v. Ulibarri, 214 F. App'x 860, 861 n.l (10th Cir. 2007); Smith v.

Dorsey, No. 93-2229, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994)

(noting no due process concerns with the magistrate judge raising an issue sua

sponte where the petitioner could "address the matter by objecting" to the report and

1 See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion

"to take judicial notice of publicly-filed records in [this] court and certain other courts

concerning matters that bear directly upon the disposition of the case at hand") (citation

omitted).

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recommendation). Finally, a Court may dismiss a § 2254 habeas petition sua sponte

only if the petition is clearly untimely on its face. Kilgore k Attorney General of

Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).

III.

AEDPA LIMITATIONS PERIOD

The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-

year limitations period for claims of a habeas petitioner in state custody. Rhine v.

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs

from the latest of;

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) 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;

(C) the date on which the 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; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2244(d)(l)(A)-(D). Unless a petitioner alleges facts implicating subsection

(B), (C), or (D), the limitations period generally begins to run from the date on which

the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.

2000).

4

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Under subsection (A), Petitioner's limitations period began to run from the date

on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120

(10th Cir. 2000). If a defendant does not timely move to withdraw a guilty plea or file

a direct appeal, Oklahoma criminal convictions become final ten days after sentencing.

See Jones v. Patton, 619 F. App'x 676, 678 (10th Cir. 2015). As stated, because Mr.

Tolliver did not file an appeal within the ten-day window to do so, his conviction

became final on April 30, 2021. See supra-, see Jimenez v. Quarterman, 555 U.S. 113,

119 (2009) ("the finality of a state-court judgment is expressly defined by statute as

the conclusion of direct review or the expiration of the time for seeking such review.")

(citing § 2244(d)(1)(A)).2

Thus, without tolling, Petitioner's one-year habeas statute of limitations to file

a habeas petition expired on May 2, 2022.3 But Mr. Tolliver filed the habeas petition

2 As discussed, after the ten-day window expired, Mr. Tolliver filed a Motion to Withdraw the

plea, followed by a certiorari appeal and an Application for Post-Conviction relief seeking an

appeal out of time—all prior to filing the habeas Petition. See supra. "[W]here a state court

grants a criminal defendant the right to file an out-of-time direct appeal during state collateral

review, but before the defendant has first sought federal habeas relief, his judgment is not yet

'final' for purposes of § 2244(d)(1)(A). In such a case, 'the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such review'

must reflect the conclusion of the out-of- time direct appeal, or the expiration of the time for

seeking review of that appeal." Jimenez, 555 U.S. at 121. But here, the conviction's finality

date is not extended because the OCCA denied Petitioner's request for an appeal out of time.

See supra.

3 Because the one-year limitations period fell on Saturday, April 30, 2021, the Petitioner had

until the following Monday, May 2, 2021, to file his habeas petition. SeeFed.R.Civ.P.

6(a)(1)(C); Alexander v. Zavaras, 424 F. App'x 738, 740, n. 1 (10th Cir. 2011).

5

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on January 29, 2024, over twenty months after the limitations period had expired.

(ECF No. 1). Thus, absent any statutory or equitable tolling, or other exception applies,

the action is untimely.

IV.

STATUTORY TOLLING

The AEDPA limitations period is tolled pending adjudication of a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). On June 5, 2023, Petitioner

filed an application for post-conviction relief seeking an appeal out of time,

followed by an appeal. See supra. But Mr. Tolliver is not entitled to any period of

tolling for the post-conviction application because it was filed after the AEDPA

limitations period had already expired on May 2, 2022. See Fisher v. Gibson, 262 F.3d

1135,1142-43 (10th Cir. 2001); Hubierv. Ortiz, 190 F. App'x 727, 729 (10th Cir. 2006)

C'[A] petition for post-conviction relief filed in state court after the limitations period

has expired no longer serves to toll it."). Accordingly, unless equitable tolling or another

exception applies, the Petition is untimely.

V.

EQUITABLE TOLLING

The AEDPA limitations period may be subject to equitable tolling. See Holland

v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an

extraordinary circumstance stood in the petitioner's way and prevented timely filing.

See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances

are extraordinary, equitable tolling is only available when the petitioner has been

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diligent in the pursuit of his habeas claims. See Holland, 631 U.S. at 653. Under this

standard, the petitioner bears a '"strong burden to show specific facts.'" Yang v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted). Mr. Tolliver has

made no argument that he is entitled to equitable tolling. See ECF No. 1. Thus, the

Court should conclude that Petitioner is not entitled to equitable tolling.

VI.

ACTUAL INNOCENCE EXCEPTION

"[A] credible showing of actual innocence" based on newly discovered evidence

"may allow a prisoner to pursue his constitutional claims" as to his conviction, under

an exception to 28 U.S.C. § 2244(d)(1)—established for the purpose of preventing a

miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013).

Successful actual-innocence claims are rare due to the demanding evidentiary

requirements for such claims. See id. at 383, 392, 401; House v. Bell, 547 U.S. 518,

538 (2006). "[Prisoners asserting innocence as a gateway to defaulted claims must

establish that, in light of new evidence, 'it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.' " House v. Bell,

547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord

McQuiggin k Perkins, 569 U.S. at 399 (applying the same standard to petitions

asserting actual innocence as a gateway to raise habeas claims that are time-barred

under § 2244(d)(1)). Such claims must be based on "factual innocence, not mere legal

insufficiency." Bousleyv. United States, 523 U.S. 614, 623 (1998).

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Here, Mr. Tolliver has made no allegation that he is actually innocent, nor does

he indicate the presence of any "new" evidence pertaining to the same. As a result,

the Court should conclude that the "actual innocence" exception does not apply.

VII.

SUMMARY

Mr. Tolliver's deadline for filing his habeas petition expired on May 2, 2022. See

supra. But Mr. Tolliver filed the habeas Petition on June 5, 2023, well after the

limitations period had expired. Petitioner is not entitled to equitable tolling and the

actual innocence exception does not apply. Thus, the Court should dismiss the Petition

as untimely.

VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

Based upon the foregoing analysis, it is recommended that the Petition be

DISMISSED as untimely. Adoption of this recommendation will moot the Petitioner's

Motion to Appoint Counsel (ECF No. 2).

Petitioner is advised of his right to file an objection to this Report and

Recommendation with the Clerk of this Court by April 5, 2024, in accordance with 28

U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to make

timely objection to this Report and Recommendation waives the right to appellate

review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d

1120, 1123 (10th Cir. 2010).

8

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STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in

this matter.

ENTERED on March 19, 2024.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

9

Additional material

from this filing is

available in the

Clerk's Office.