Campbell v. Wilkinson , 684 F. App'x 709 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 5, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MICHAEL A. CAMPBELL,
Petitioner - Appellant,
No. 17-6003
v. (W.D. Okla.)
(D.C. No. 5:16-CV-01190-C)
TIM WILKINSON,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
This matter is before the court on Michael A. Campbell’s pro se requests
for a certificate of appealability (“COA”) and to proceed on appeal in forma
pauperis. Campbell seeks a COA so he can appeal the district court’s dismissal,
on timeliness grounds, of his 28 U.S.C. § 2254 petition. See 28 U.S.C.
§ 2253(c)(1)(A) (providing no appeal may be taken from “a final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court” without first obtaining a COA); id.§ 2244(d)(1)(A) (setting out a one-year statute of limitations on § 2254 petitions
running from the date on which the conviction became final). Because Campbell
has not “made a substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
In a detailed Report and Recommendation, the magistrate judge concluded
Campbell’s Oklahoma state robbery convictions became final, at the very latest,
on June 30, 2010. Thus, the magistrate judge noted, Campbell’s § 2254 habeas
petition was due no later than June 30, 2011. See 28 U.S.C. § 2244(d). The
magistrate judge further concluded Campbell had failed to demonstrate an
entitlement to either statutory tolling, see id. § 2244(d)(2), or equitable tolling,
see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Upon de novo review,
the district court adopted the Report and Recommendation and dismissed
Campbell’s § 2254 habeas petition with prejudice.
The granting of a COA is a jurisdictional prerequisite to Campbell’s appeal
from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To be entitled to a COA, Campbell must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the requisite showing, he must demonstrate “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.” Miller-El, 537 U.S. at 336 (quotations
omitted). When a district court dismisses a § 2254 motion on procedural grounds,
a petitioner is entitled to a COA only if he shows both that reasonable jurists
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would find it debatable whether he had stated a valid constitutional claim and
debatable whether the district court’s procedural ruling was correct. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating whether Campbell has
satisfied his burden, this court undertakes “a preliminary, though not definitive,
consideration of the [legal] framework” applicable to each of his claims. Miller-
El, 537 U.S. at 338. Although Campbell need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id. As a further overlay on this
standard, we review for abuse of discretion the district court’s decision that
Campbell is not entitled to have the limitations period in § 2244(d) equitably
tolled. See Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).
Having undertaken a review of Campbell’s appellate filings, the magistrate
judge’s thorough Report and Recommendation, the district’s order, and the entire
record before this court pursuant to the framework set out by the Supreme Court
in Miller-El and Slack, we conclude Campbell is not entitled to a COA. The
district court’s dismissal of Campbell’s § 2254 petition as untimely is not
reasonably subject to debate and the issues he seeks to raise on appeal are not
adequate to deserve further proceedings. Nor could it reasonably be suggested
the district court abused its discretion in refusing to apply equitable tolling.
Accordingly, this court DENIES Campbell’s request for a COA and DISMISSES
this appeal. Furthermore, because Campbell has not advanced a “reasoned,
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nonfrivolous argument on the law and facts in support of the issues rased on
appeal,” his request to proceed in forma pauperis is DENIED. Watkins v. Leyba,
543 F.3d 624, 627 (10th Cir. 2008) (quotation omitted).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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