Timley v. Nelson , 36 F. App'x 387 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 31 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
IRVIN TIMLEY,
Petitioner - Appellant, No. 02-3021
v. (D.C. No. 01-CV-3359-DES)
MICHAEL A. NELSON and (D. Kansas)
ATTORNEY GENERAL OF
KANSAS,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se § 2254 prisoner appeal. Mr. Timley was convicted of three
counts of rape and four counts of aggravated criminal sodomy. His convictions
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
were affirmed on direct appeal. Mr. Timley’s three state post-conviction actions
and appeals were unsuccessful.
In his § 2254 petition, Mr. Timley raised ten claims of error. The
magistrate judge recommended that the petition be denied as untimely under
AEDPA. After consideration of Mr. Timley’s objections, the district court
adopted the recommendation, finding no grounds for equitable tolling, and denied
the petition. Finding no merit in any of Mr. Timley’s arguments, the district court
declined to grant him a certificate of appealability. Petitioner then applied to this
court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate that “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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
We have carefully reviewed Mr. Timley’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Appellant’s brief raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
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district court in its Order of December 20, 2001, adopting the magistrate judge’s
report and recommendation, we cannot say that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner.” Id. We DENY Petitioner’s request for a certificate of
appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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