Anderson v. Schnurr ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 29, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GREGORY ALLEN ANDERSON,
Petitioner - Appellant,
No. 18-3217
v.
(D.C. No. 5:17-CV-03068-SAC)
(D. Kansas)
DAN SCHNURR; ATTORNEY
GENERAL OF KANSAS,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
Petitioner, Gregory Allen Anderson, a Kansas state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) so he can appeal the district
court’s dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a
final order disposing of a § 2254 petition unless the petitioner first obtains a
COA). Anderson’s request to proceed in forma pauperis in this matter is
granted.
Anderson’s state convictions for rape and solicitation to commit aggravated
intimidation of a witness became final on October 26, 2010. Even though
Anderson qualified for statutory tolling, at the time he filed his federal habeas
petition on April 19, 2017, the one-year limitations period set out in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) had expired. See 28
U.S.C. § 2244(d) (setting forth a statute of limitations for § 2254 petitions).
The district court agreed with Respondents that Anderson’s § 2254 petition
was filed outside the one-year limitations period established by the AEDPA and
he was not entitled to a new limitations period under 28 U.S.C. § 2244(d)(1)(D)
because the factual predicate of the claim raised in his § 2254 petition was known
to him before his conviction became final. The district court also concluded that
Anderson failed to identify any circumstances that would support equitable tolling
of the limitations period. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Accordingly, the court concluded the § 2254 petition was untimely.
To be entitled to a COA, Anderson must show “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, 484-85 (2000) (holding that when a district
court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
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district court’s procedural ruling was correct). This court reviews the district
court’s decision on equitable tolling of the limitations period for abuse of
discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
After reviewing Anderson’s appellate brief and application for COA, the
district court’s order, and the entire record on appeal pursuant to the framework
set out by the Supreme Court, we conclude Anderson is not entitled to a COA.
Any reasonable jurist would regard Anderson’s § 2254 petition as untimely and
the record fully supports the district court’s conclusion that Anderson failed to
demonstrate entitlement to equitable tolling. Because the district court’s
resolution of Anderson’s § 2254 petition as untimely is not deserving of further
proceedings or subject to a different resolution on appeal, Anderson has not
“made a substantial showing of the denial of a constitutional right” and is not
entitled to a COA. 28 U.S.C. § 2253(c)(2).
This court denies Anderson’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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