Davison v. McCollum
696 F. App'x 859
| 10th Cir. | 2017Background
- Davison was convicted in Oklahoma state court in 2002 of lewd molestation and sexually abusing a minor and ultimately received concurrent 45‑year terms after direct appeal concluded in 2004.
- His conviction became final on July 28, 2004; the one‑year AEDPA limitations period expired July 28, 2005.
- Davison filed a state post‑conviction application in April 2013 raising ineffective‑assistance claims; the state courts denied relief and the OCCA affirmed in April 2015.
- Davison filed a pro se 28 U.S.C. § 2254 petition in federal court on April 11, 2016—over ten years after the limitations deadline.
- The district court dismissed the petition as untimely and denied equitable tolling; Davison sought a certificate of appealability (COA) to challenge that procedural ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 28 U.S.C. § 2244(d)(1) | Davison contends tolling is warranted so his late petition is timely. | AEDPA one‑year period ran from finality in 2004 to July 28, 2005; petition filed 2016 is untimely. | Court: Petition is untimely; limitations expired July 28, 2005. |
| Equitable tolling — attorney abandonment | Davison asserts post‑appeal counsel abandonment (counsel died 2011) prevented timely filing; needed time to obtain records and hire new counsel (2011–2013). | District court assumed some tolling but held Davison did not justify tolling beyond counsel’s death period; he gave no reason why obtaining records/replacing counsel required more time. | Court: No abuse of discretion in declining extended tolling for attorney abandonment. |
| Equitable tolling — mental incapacity | Davison says mild TBI (1999) and long‑term symptoms rendered him unable to pursue claims between 2011–2016. | Medical records do not show incapacity during the relevant years; many notes undermine a decade‑long incapacity. | Court: Evidence insufficient to warrant equitable tolling for mental incapacity; denial without evidentiary hearing not an abuse. |
| Certificate of appealability standard | N/A — Davison seeks COA because dismissal was procedural. | COA appropriate only if jurists of reason would find debatable both the constitutional claim and the procedural ruling. | Court: COA denied; jurists would not reasonably debate the procedural ruling. |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (COA standard when petition disposed on procedural grounds)
- Pace v. DiGuglielmo, 544 U.S. 408 (standards for equitable tolling of AEDPA limitations)
- Maples v. Thomas, 565 U.S. 266 (attorney abandonment can be an extraordinary circumstance warranting tolling)
- Burger v. Scott, 317 F.3d 1133 (standard of review for equitable tolling denial)
- Hooks v. Workman, 606 F.3d 715 (circumstances under which evidentiary hearing on tolling may be required)
- Clark v. Oklahoma, 468 F.3d 711 (state post‑conviction filed after AEDPA deadline does not statutorily toll the limitations period)
- Fleming v. Evans, 481 F.3d 1249 (calculation of AEDPA finality date following direct appeal)