Dembry v. Abbott

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A N TH O NY DEM B RY ,
Petitioner-A ppellant,
v. No. 06-1287
(D.C. No. 05-CV -1071-ZLW -CB S)
JA M ES A BB OTT, Warden; JO HN (D. Colorado)
SU THERS, The Attorney General of
the State of Colorado,
Respondents-Appellees.
ORDER *
Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.
Anthony Dembry, a state prisoner appearing pro se, 1 seeks a certificate of
appealability (COA) to challenge the district court’s denial of his application for a
writ of habeas corpus under 28 U.S.C. § 2254. Exercising jurisdiction under 28
U.S.C. § 2253(c)(1), w e see no basis for appeal and deny a COA.
M r. Dembry was convicted in Colorado state court of reckless
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
W e liberally construe M r. Dembry’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998).
endangerment, sexual assault on a child, and sexual assault on a child by one in a
position of trust. The court imposed sentences of varying lengths to run
concurrently, the greatest of which was 20 years to life imprisonment. The
Colorado Court of Appeals affirmed M r. Dembry’s conviction and the state
supreme court denied his petition for a writ of certiorari.
In his § 2254 habeas petition, M r. Dembry raised six claims which we
group as follows: (1) he was denied his right to present a defense when the trial
court denied his motion to pierce the rape shield statute, and when it held that
testimony from his suppression hearing could be used to impeach any trial
testimony regarding his good character; (2) he was denied his right to a fair trial
when the court refused to sever his attempted manslaughter count from the sexual
assault counts, acted in a manner overtly partial to the victim, and denied his
challenge to a juror for cause; and (3) his sentence violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). A
magistrate judge reviewed M r. Dembry’s claims and, on M ay 15, 2006,
recommended that the district court deny his application. M r. Dembry submitted
objections to the magistrate judge’s recommendation in a response signed M ay
27. However, his objections were filed with the court on June 9. The district
court determined that the response was “untimely as it was not filed within ten
days of the M ay 15, 2006, Recommendation.” Rec., vol. I, doc. 39 at 1.
Considering the recommendation on its merits nonetheless, the court found it was
-2-
“fully supported by the record and the applicable law.” Id. at 2. The court
accepted and adopted the recommendation and denied M r. Dembry’s application
for habeas relief. Id.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state
habeas petitioner “has no absolute entitlement to appeal a district court’s denial of
his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).
Before he may appeal, he first must obtain a COA. Otherwise, we have no
jurisdiction over the appeal. See id. at 336. A COA will issue only if petitioner
makes “a substantial showing of the denial of a constitutional right.” Slack v.
M cDaniel, 529 U.S. 473, 483 (2000). To do so, petitioner must show “that
reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Id. at 484 (citations and quotation
marks omitted).
In determining w hether the petitioner has made the required showing, we
review the claims presented in his § 2254 petition and generally assess their
merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District
Court’s application of A EDPA to petitioner’s constitutional claims and ask
whether that resolution was debatable amongst jurists of reason.” Id. W here
petitioner’s federal habeas claims w ere adjudicated on the merits in state court,
we will grant an application for a COA “only where the state court decision was
-3-
‘contrary to, or involved an unreasonable application of , clearly established
Federal law, as determined by the Supreme Court . . .’ or was ‘based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d 935,
937 (10th Cir. 2004).
First, we examine w hether M r. Dembry’s objections to the magistrate’s
recommendations were timely. See Vega v. Suthers, 195 F.3d 573, 579 (10th Cir.
1999) (“[A] litigant's failure to file timely objections to a magistrate's
[recommendation] waives appellate review of both factual and legal
determinations.”). The magistrate judge, in his M ay 15th recommendation,
advised M r. Dembry that he had “ten days after service of a copy of the
Recommendation” to file any written objections. Rec., vol. I, doc. 36 at 26-27.
See also 28 U.S.C. § 636(b)(1); Vega v. Suthers, 195 F.3d at 579. M r. Dembry
mailed his objection to the recommendation on M ay 27, 2006, see Rec., vol. I,
doc. 38 at 2, but it w as not filed with court until June 9, 2006. Id. The district
court concluded M r. D embry objections were not filed within the 10 day period.
W e evaluate the timeliness of M r. Dembry’s objection according to the date
the document was signed and mailed, M ay 27th, and not the date it w as filed. See
Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (per curiam); M arsh v.
Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000). Furthermore, we apply Federal
Rules of Civil Procedure 5, 6, and 72 when evaluating the timeliness of a party’s
-4-
objection to a magistrate judge’s recommendation. See Theede v. U.S. Dep’t of
Labor, 172 F.3d 1262, 1266 (10th Cir. 1999). W here the provided period of time
for submission is less than eleven days, as it is here, “intermediate Saturdays,
Sunday, and legal holidays shall be excluded in the computation.” F ED . R. C IV . P.
6(a). In addition, where service is made by mail, “[three] days are added after the
prescribed period would otherwise expire.” Id. at 6(e). M r. Dembry mailed his
objections twelve days after the magistrate issued his recommendation. The
intervening period included one Saturday and one Sunday. Excluding these two
weekend days and considering the additional three day extension, M r. Dembry’s
objections fell securely within the ten day limit. Thus, M r. Dembry filed a
timely objection and preserved his right to appeal to this court.
Although M r. Dembry surpasses this timeliness hurdle, after reviewing the
record, the magistrate judge’s recommendation, and the law, we conclude the
district court’s application of AEDPA to petitioner’s claims did not create a result
that would be debatable amongst jurists of reason. W e reject M r. Dembry’s
application for a COA for substantially the same reasons set forth by the
magistrate judge in his thorough report and recommendation.
M r. Dembry seeks leave to proceed in form a pauperis. Because M r.
Dembry has failed to demonstrate the existence of “a reasoned, nonfrivolous
argument on the law and the facts in support of the issues raised on appeal,”
M cIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997), we deny
-5-
his request to proceed ifp.
Accordingly, we D EN Y M r. D embry’s request for a COA, DENY his
motion to proceed ifp, and DISM ISS the appeal.
ENTERED FOR TH E CO UR T,
Stephanie K. Seymour
Circuit Judge
-6-