Hetchler v. Addison

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARSHALL SHANNON
HETCHLER,
Petitioner - Appellant, No. 02-7089
vs. (D.C. No. 01-CV-421-P)
(E.D. Okla.)
MIKE ADDISON, Warden; RONALD
ANDERSON, Asst. General Counsel,
Respondents - Appellees.
ORDER DENYING APPLICATION
FOR A CERTIFICATE OF APPEALABILITY
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Mr. Hetchler, an inmate appearing pro se, seeks to appeal from the
dismissal of his habeas corpus petition pursuant to 28 U.S.C. § 2241. Upon
motion of respondents, the district court dismissed the action as beyond the one-
year limitation period in 28 U.S.C. § 2244(d) and denied appointment of counsel.
For this court to have jurisdiction over his appeal, a certificate of
appealability (“COA”) must be granted. Miller-El v. Cockrell, 123 S. Ct. 1029,
1039 (2003). Where, as here, the district court has denied the petition on
procedural grounds without deciding the merits, a COA requires a showing “that
jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and 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 (2000).
With those standards in mind, we have considered the district court’s order
holding that the limitations period began to run after Mr. Hetchler exhausted his
administrative remedies on March 2, 2001, that state proceedings filed after the
one-year deadline did not toll the limitations period, that the federal petition is
not timely filed and equitable tolling is not available. R. Doc. 30. After
conducting an overview of Mr. Hetchler’s claims and conducting a general
assessment of their merits as required by Miller-El, 123 S. Ct. at 1039, we come
to the following conclusion. Mr. Hetchler has not demonstrated that the district
court’s conclusions are debatable, let alone wrong and the district court did not
abuse its considerable discretion in declining to appoint counsel.
The application for a COA is denied and this matter is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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