Anderson v. Schnurr

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 29, 2019
• Docket: 18-3217
• Status: Unpublished

Opinion

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

-2- 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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