Fitzpatrick v. Monday, 549 F. App'x 734

Keman Fitzpatrick was convicted in Oklahoma state court (Oct. 18, 2007) and the OCCA affirmed on March 25, 2009; judgment became final after the certiorari period expired.
Fitzpatrick filed multiple state post-conviction applications; a June 3, 2010 application was struck by the Oklahoma County District Court (OCDC) for violating a local page limit (Rule 37). The OCDC later treated other filings as a second application and denied relief; Fitzpatrick missed the appeal deadline for that denial. A third application was denied and affirmed by the OCCA.
Fitzpatrick filed a federal habeas petition under 28 U.S.C. § 2254 on March 22, 2013—almost three years after the one-year limitations period expired (deadline June 23, 2010).
The magistrate judge recommended dismissal as untimely because (1) the June 3, 2010 filing was not "properly filed" under § 2244(d)(2) and therefore did not statutorily toll the limitations period, and (2) Fitzpatrick did not show entitlement to equitable tolling or a credible actual-innocence gateway.
The district court initially adopted the recommendation, allowed Fitzpatrick to file objections, then reaffirmed dismissal. Fitzpatrick appealed and sought a certificate of appealability (COA) and in forma pauperis status; the Tenth Circuit denied both and affirmed the dismissal.

Issue	Fitzpatrick's Argument	State/District Court's Argument	Held
Timeliness of § 2254 petition	His June 3, 2010 state post-conviction application was "properly filed," so statutory tolling under § 2244(d)(2) applies and the federal petition is timely	The June 3 application was struck for noncompliance with Rule 37, so it was not properly filed and did not toll the limitations period	The court held the June 3 filing was not properly filed; no statutory tolling applied; petition untimely
Equitable tolling/actual innocence	Asserts he is innocent and seeks equitable tolling	Bare assertion of innocence is insufficient; no extraordinary circumstance or credible actual-innocence showing	The court held Fitzpatrick failed to show diligence or extraordinary circumstances and made no colorable actual-innocence showing; equitable tolling denied
Certificate of appealability (COA)	The district court erred on procedural timeliness and tolling assessments	Jurists of reason would not find the procedural rulings (statutory/equitable tolling) debatable	COA denied; appealability requirements not met
In forma pauperis (ifp) on appeal	Requests leave to proceed ifp	No basis to grant given failure to meet COA standard	Motion to proceed ifp denied

Locke v. Saffle, 237 F.3d 1269 (10th Cir. 2001) (finality for § 2244(d)(1)(A) and certiorari-period calculation)
United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003) (anniversary method for calculating one-year limitations period)
Garcia v. Shanks, 351 F.3d 468 (10th Cir. 2003) (definition of a "properly filed" state collateral application)
Fisher v. Gibson, 262 F.3d 1135 (10th Cir. 2001) (state filings after the limitations period do not toll § 2244(d)(2))
Holland v. Florida, 130 S. Ct. 2549 (2010) (equitable tolling available in extraordinary cases)
Lawrence v. Florida, 549 U.S. 327 (2007) (equitable tolling standards: diligence and extraordinary circumstances)
Lopez v. Trani, 628 F.3d 1228 (10th Cir. 2010) (actual-innocence gateway to overcome procedural bars)
Schlup v. Delo, 513 U.S. 298 (1995) (standard for a "colorable" actual-innocence claim)
Herrera v. Collins, 506 U.S. 390 (1993) (actual innocence is rarely a basis for relief absent new reliable evidence)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA standard)
Clark v. Oklahoma, 468 F.3d 711 (10th Cir. 2006) (application of Slack to district-court procedural dismissals)
Slack v. McDaniel, 529 U.S. 473 (2000) (COA standard when dismissal rests on procedural grounds)
Day v. McDonough, 547 U.S. 198 (2006) (district court may raise timeliness sua sponte but must give notice and opportunity to respond)