Kenyon v. Wyoming Department of Corrections ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 4, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
HARLAND P. KENYON,
Petitioner - Appellant, No. 08-8074
v. (D. Wyoming)
WYOMING DEPARTMENT OF (D.C. No. 07-CV-00070-ABJ)
CORRECTIONS; WYOMING
ATTORNEY GENERAL,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, BRISCOE, and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Petitioner/appellant Harland P. Kenyon, a Wyoming state prisoner
proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal
*
This order is not binding precedent except under the doctrines of law of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.
the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. We deny Kenyon a COA and dismiss this appeal.
BACKGROUND
As did the district court, we quote from the opinion of the Wyoming
Supreme Court affirming Kenyon’s conviction and sentence to set forth the
pertinent facts in this case:
Kenyon and Danielle Kelley, both methamphetamine addicts,
began living together in the summer of 2000. The relationship was
abusive, and Kenyon physically assaulted Kelley on numerous
occasions. In March of 2001, the couple was living in California, but
because of the abuse she was suffering, Kelley moved to Cody,
Wyoming, to live with her brother, Justin Ritter. Kenyon soon found
her, and the two reconciled in Cody. At Mr. Ritter’s invitation,
Kenyon began living in the apartment with Kelley and Ritter.
On April 10, 2001, Kenyon and Kelley argued, and he choked
Kelley until she lost consciousness several times. Kenyon confined
Kelley inside the apartment for two days, threatening to kill her if
she went near a door. She escaped while Kenyon was in the shower
and was taken to the hospital but refused medical treatment. Fearing
that he would be arrested, Kenyon left Cody and called Kelley about
a week later to apologize for the incident. When she refused to
renew the relationship, Kenyon called the apartment repeatedly.
Ritter would not let Kenyon speak to Kelley, and Kenyon threatened
Ritter’s life. Ritter reported the threats to the police, applied for a
restraining order, obtained a gun from his mother and blocked doors
with shovels to prevent Kenyon from breaking into the apartment.
Kenyon drove to Cody and, on May 4, 2001, parked on another
street away from the apartment, made sure no one was in the
apartment, and then entered the apartment with a crowbar, which he
traded for the gun that he found inside. Kenyon may have had a key
to Ritter’s apartment, and although Ritter noticed the door was
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unlocked, Ritter and his fiancee, Amanda Payne, entered Ritter’s
apartment. Ritter screamed, and Payne turned to see Kenyon
pointing a gun at Ritter. Kenyon demanded to know where Kelley
was and, when Ritter told him to leave, struck Ritter with a closed
fist. Ritter told Kenyon that Kelley was in jail, and Kenyon struck
him again. Bleeding, Ritter stood to get a rag, and Kenyon put the
gun inside of Ritter’s mouth, forcing him to sit down, and again
struck him. Payne was crouching in a corner comforting her crying
two-year-old son. After Kenyon reached for some duct tape, saying
he wanted to shut the kid up, Ritter went to the front door, opened it
and told Kenyon to leave. Kenyon ordered Ritter away from the
door, again threatening to kill him. Ritter told Payne to leave, and as
she approached the door, Kenyon told her he would kill Ritter if she
left. Payne returned to the corner with her son. Ritter again told her
to leave, and as she started for the door she heard the gun discharge.
Ritter, shot in the chest, collapsed outside of his door. Kenyon fled
out the back door. Ritter died soon after arriving at the hospital from
a single gunshot wound to the chest. Kenyon was arrested in Las
Vegas, Nevada. He admitted shooting Ritter, but claimed it was an
accident.
Kenyon v. State, 96 P.3d 1016, 1019 (Wyo. 2004), cert. denied, 543 U.S. 1175(2005).
Kenyon was convicted by a jury of first degree murder, aggravated
burglary, kidnaping and battery. Pursuant to Wyo. Stat. Ann. § 6-2-101(c),
Kenyon received a sentence of life without parole for the first degree murder
conviction, and lesser sentences for the other convictions.
Kenyon appealed his conviction and sentence to the Wyoming Supreme
Court, arguing six issues, including whether the life imprisonment without parole
statute, Wyo. Stat. Ann. § 6-2-101(c), was unconstitutional as a violation of the
due process clauses of the United States and Wyoming Constitutions. The
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Wyoming Supreme Court affirmed the conviction and sentence on August 27,
2004. Kenyon, 93 P.3d 1016. On February 22, 2005, the United States Supreme
Court denied Kenyon’s petition for a writ of certiorari. Kenyon v. Wyoming, 543
U.S. 1175 (2005). Kenyon then filed a petition for post-conviction relief in state
court on August 4, 2006, which the state court denied on September 12, 2006. On
December 29, 2006, Kenyon petitioned the Wyoming Supreme Court for a writ of
certiorari, which that court denied on January 16, 2007.
Kenyon then filed the instant § 2254 petition on March 26, 2007. In
addition to arguments about ineffective assistance of counsel, Kenyon again
argued that Wyo. Stat. Ann. § 6-2-101 was unconstitutional. The district court
held that Kenyon’s petition was time-barred by the one-year limitations period
applicable to habeas petitions filed by prisoners in state custody, pursuant to the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d).
Additionally, the district court held that neither statutory nor equitable tolling of
the limitations period prevented Kenyon’s petition from being deemed untimely.
We agree with the district court.
DISCUSSION
“A COA is a jurisdictional pre-requisite to our review.” Clark v.
Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006), cert. denied, 127 S. Ct. 3007(2007). We will issue a COA only if Kenyon makes a “substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
he must establish that “reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal quotations omitted). Because the district court
dismissed Kenyon’s petition on procedural grounds, Kenyon must demonstrate
both 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.”
Id. “Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.; see also Clark, 468 F.3d at 713-14.
As indicated, AEDPA provides a one-year period of limitations for habeas
petitioners in state custody. 28 U.S.C. § 2244(d)(1). That limitations period runs
from the later 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;
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(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.
Id. Accordingly, in order for Kenyon’s petition to be timely, it must have been
filed within one year of the date when his judgment became final. His judgment
became final on February 22, 2005, when the United States Supreme Court denied
his petition for a writ of certiorari. Therefore, in order for Kenyon’s habeas
petition to be timely filed, it must have been filed by February 22, 2006. Since
his petition was filed on March 26, 2007, some two years after his conviction
became final, the petition is untimely, absent statutory or equitable tolling of the
limitations period.
Section 2244(d)(2) provides that the one-year limitations period is tolled
while “a properly filed application for State post-conviction or other collateral
review . . . is pending.” However, our precedents establish that this statutory
tolling period is inapplicable to Kenyon because his application for state post-
conviction relief was filed after the one-year limitations period established by
§ 2244(d) had expired. See Clark, 468 F.3d at 714 (“Only state petitions for post-
conviction relief filed within the one year allowed by AEDPA will toll the statute
of limitations.”).
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Kenyon receives no more assistance from the equitable tolling doctrine. He
argues that we should suspend the limitations period because he was transferred
outside of Wyoming to a prison facility or facilities where he was unable to
access legal materials. 1 “Equitable tolling of the limitations period is available
‘when an inmate diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his control.’”
United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008) (quoting Marsh
v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). We have stated:
Equitable tolling would be appropriate, for example, when a prisoner
is actually innocent, when an adversary’s conduct–or other
uncontrollable circumstances–prevents a prisoner from timely filing,
or when a prisoner actively pursues judicial remedies but files a
defective pleading during the statutory period. . . . Moreover, a
petitioner must diligently pursue his federal habeas claims; a claim of
insufficient access to relevant law . . . is not enough to support
equitable tolling.
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citations omitted).
1
Specifically, Kenyon claims he was denied:
access to a legal representative from the State of Wyoming. Also,
there was no access to any of Wyoming’s legal procedural or State
Statute information at this out-of-state ‘contracted private facility.’
Furthermore, there was not any access to any Wyoming Law books
or material relating to legal issues involving Wyoming courts. . . .
Petitioner was ‘misinformed’ by fellow inmates seeking release, that,
by joining their petition, it would preserve his opportunity to seek
federal relief.
Appellant/Petitioner’s Op. Br. at 7.
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Kenyon makes merely conclusory allegations that he was denied access to
legal materials while incarcerated at some unnamed facility or facilities out of
state. He does not demonstrate that he diligently pursued his claims; rather, he
makes unsupported and very general accusations of the denial of access to legal
materials and states that he was “misinformed” by fellow prisoners. This level of
vague generalities regarding access is in marked contrast to the detailed legal
citations and arguments that he presents on particular issues. That is insufficient
to establish the due diligence necessary to support equitable tolling of the one-
year limitations period.
CONCLUSION
For the foregoing reasons, we DENY Kenyon’s request for a COA and
DISMISS this appeal. Kenyon’s motion to proceed in forma pauperis is also
DENIED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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