Brown v. State of Utah ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 30, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
FRANK JOSEPH BROWN,
Petitioner - Appellant,
v. No. 19-4028
(D.C. No. 2:17-CV-00826-TS)
STATE OF UTAH, (D. Utah)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, PHILLIPS, and EID, Circuit Judges.
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Frank Brown seeks a certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2254 motion. We deny a COA and dismiss.
I
Brown pled guilty to one count of attempted child kidnapping in Utah state
court. He was sentenced to an indeterminate prison term of three years to life on
February 12, 2016. Brown did not appeal or seek state post-conviction review.
On July 20, 2017, Brown filed his federal habeas petition, alleging a variety of
claims including pre-plea constitutional violations, ineffective assistance of counsel,
*
This order is not binding precedent, except under the doctrines of law of the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.
and actual innocence. The district court dismissed his petition as untimely and
denied a COA.
II
Brown may not appeal the denial of habeas relief under § 2254 without a
COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). Because
the district court dismissed Brown’s petition on procedural grounds, he must show
“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, 478 (2000).
Jurists of reason would not find debatable the district court’s determination
that Brown’s § 2254 motion was untimely. Brown’s conviction became final and the
one-year limitations period began to run at “the expiration of the time for seeking
[direct] review.” § 2244(d)(1)(a). Under Utah law, March 14, 2016, was the date on
which his time to file a direct appeal expired. See Utah R. App. P. 4(a) (“the notice
of appeal . . . shall be filed with the clerk of the trial court within 30 days after the
date of entry of the judgment or order appealed from.”). But Brown filed his habeas
petition on July 20, 2017, more than four months after the limitations period had
expired. Accordingly, the district court correctly concluded Brown’s petition was
untimely.
2
Brown contends his petition is not time-barred because he is actually innocent.
See Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010) (“[A] sufficiently
supported claim of actual innocence creates an exception to procedural barriers for
bringing constitutional claims, regardless of whether the petitioner demonstrated
cause for the failure to bring these claims forward earlier.”). To establish actual
innocence, Brown must present “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And in
light of this evidence, Brown “must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id.
at 327. Brown fails to adduce evidence meeting this high standard, and he advances
no other arguments suggesting his petition is timely.1
III
We DENY Brown’s request for a COA and DISMISS this matter.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
To the extent Brown argues in his request for a COA that his petition is
timely because of newly discovered evidence, see § 2244(d)(1)(D), that contention
fails. Brown does not address the district court’s determination that the evidence he
discusses was either available before his plea or is irrelevant, as in the case of the
investigatory evidence refuting assertions that Brown was involved in a sexual
relationship with the kidnap victim.
3