Ellis v. Poppell ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID WAYNE ELLIS,
Petitioner-Appellant,
No. 02-5048
v. (Northern District of Oklahoma)
(D.C. No. 01-CV-465-K)
DAYTON J. POPPELL, Warden,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and 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This order and judgment is not binding precedent, except under the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.
Proceeding pro se , petitioner David Wayne Ellis seeks a certificate of
appealability (“COA”) to enable him to appeal the district court’s denial of his 28
U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal
may be taken from the denial of a § 2254 petition unless the petitioner first
obtains a COA). The district court dismissed Ellis’ petition because it was
untimely under the Antiterrorism and Effective Death Penalty Act of 1996. See
28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to a
judgment of a State court.”). Ellis is not entitled to a COA unless he can make a
“substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
Ellis can make this showing by demonstrating that the issues raised are debatable
among jurists, a court could resolve the issues differently, or that the questions
presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473,
483-84 (2000).
This court has read Ellis’ request for a COA and accompanying brief and
has conducted a de novo review of the district court’s order and the entire record
on appeal. That de novo review clearly demonstrates the district court’s
dismissal of Ellis’ § 2254 petition as untimely is not deserving of further
proceedings or subject to a different resolution on appeal. Accordingly, this
court denies Ellis’ request for a COA for substantially those reasons set forth in
the district court’s order filed April 1, 2002, and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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