Minor v. Chapdelaine ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 3, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KERRY MINOR,
Petitioner - Appellant,
v. No. 16-1376
(D.C. No. 1:16-CV-01827-LTB)
CHAPDELAINE, Warden; CYNTHIA (D. Colo.)
COFFMAN, the Attorney General of the
State of Colorado,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before McHUGH and BALDOCK, Circuit Judges.**
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Appellant Kerry Minor, a Colorado state prisoner, seeks a certificate of
appealability (COA) allowing him to appeal the district court’s dismissal of his
*
This order is not binding precedent, except under the doctrines of law of the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 Honorable Neil Gorsuch considered this matter originally but did not
participate in its final resolution. The practice of this Court permits the remaining two
panel judges, if in agreement, to act as a quorum in resolving this matter. See 28 U.S.C.
§ 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting
that this Court allows the remaining panel judges to act as a quorum in resolving an
appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2nd Cir. 1994), cert. denied, 513
U.S. 1082 (1995) (holding that the remaining two judges of the original three judge panel
could decide a petition for rehearing without the third judge).
application for a writ of habeas corpus under 28 U.S.C. § 2254. But we just do not
see how we may grant him one.
Specifically, we agree with the district court that Appellant’s application is
untimely under 28 U.S.C. § 2244(d), and we do not believe this conclusion is
debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that courts of
appeals should grant COAs for habeas applications the district court dismissed on
procedural grounds when, among other requirements, “the prisoner shows . . . that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling”). Section 2244(d)(1) teaches that “[a] 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” This period began to run on the date
Appellant’s state-court judgment became final for the purposes of § 2244(d), which,
in his case, was February 12, 2007. See id. § 2244(d)(1)(A). Obviously enough,
Appellant thus had until February 12, 2008, to file his application in the district
court.
But Appellant did not file his application until July 14, 2016—over eight years
from the day the one-year limitation period ran in full. Appellant’s application is
therefore untimely under § 2244(d) unless some other statute or legal principle tolled
the one-year limitation period. One potential avenue is § 2244(d)(2), which requires
tolling the limitation period for “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent
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judgment or claim is pending.” And to be sure, Appellant filed post-conviction
motions for relief in Colorado state court that concluded just recently.
Even so, the timing when Appellant filed his motions for post-conviction relief
in Colorado state court matters greatly, for “[o]nly state petitions for post-conviction
relief filed within the one year allowed by [§ 2244(d)(1)] will toll the statute of
limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (emphasis
added). Appellant, however, filed his very first motion for post-conviction relief in
Colorado state court on November 13, 2009, which was nearly two years after
February 12, 2008. Appellant thus cannot rely on § 2244(d)(2) to toll the one-year
limitation period.
Alternatively, since the one-year limitation period is not jurisdictional in
nature, the doctrine of equitable tolling could possibly salvage Appellant from
§ 2244(d)’s time requirement. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010)
(holding that § 2244(d) “is subject to equitable tolling”). Equitable tolling requires
that Appellant show “‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and prevented timely filing.” Id.
at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As far as we can
tell, the only potential argument Appellant makes in support of this doctrine is that he
filed his November 13, 2009 state motion for post-conviction relief within the time
limitation set by Colorado law—i.e., a limitation that is not constrained to one year—
and he therefore should be excused from filing an untimely application for federal
habeas relief in the district court.
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But in light of our precedent that state post-conviction motions filed after
§ 2244(d)’s one-year limitation period has expired have no bearing on the timeliness
of a petitioner’s federal habeas application, see, e.g., Clark, 468 F.3d at 714, we do
not believe Appellant’s alleged diligence in state court could or should cure his lack
of diligence in federal court even for the purposes of equitable tolling. And in any
event, even if we were to generously assume Appellant was diligent, we are at a loss
in identifying what extraordinary circumstance may have stood in his way to prevent
timely filing of his federal application. We thus see no reason to equitably toll the
one-year limitation period.
Because we cannot decipher any reason to toll § 2244(d)’s one-year limitation
period, we agree with the district court that Appellant’s § 2254 application for a writ
of habeas corpus is untimely for substantially the same reasons outlined in its August
29, 2016 order. We also believe it is overwhelmingly clear that no reasonable jurist
could find the timeliness of Appellant’s application to be debatable. We therefore
deny his request for a COA and dismiss this matter. Appellant’s motion for leave to
proceed in forma pauperis is likewise denied.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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