Anthony v. Nelson ( 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
ANDREW JUAN ANTHONY,
Petitioner-Appellant,
No. 02-3209
v.
(District of Kansas)
(D.C. No. 01-CV-3396-DES)
MICHAEL A. NELSON; ATTORNEY
GENERAL OF KANSAS,
Respondents-Appellees.
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This order and judgment is not binding precedent, except under the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.
Andrew Juan Anthony, the pro se petitioner in this case, seeks a certificate
of appealability (“COA”) so he can 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 concluded that Anthony’s petition was
untimely under the Antiterrorism and Effective Death Penalty Act of 1996 and
dismissed it with prejudice. 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.”). Anthony is not entitled to a
COA unless he can make a “substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Anthony 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 Anthony’s 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 Anthony’s § 2254 petition as untimely is not deserving of further
proceedings or subject to a different resolution on appeal. Accordingly, this
court denies Anthony’s request for a COA for substantially those reasons set
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forth in the magistrate judge’s report and recommendation dated January 11,
2002 and the district court’s order dated June 7, 2002, and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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