Barkus v. Kaiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 2000
• Docket: 99-5187
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 1 2000 TENTH CIRCUIT PATRICK FISHER Clerk

TIMOTHY LYNN BARKUS,

Petitioner-Appellant, No. 99-5187 v. (N. District of Oklahoma) (D.C. No. 98-CV-855-B) STEPHEN KAISER,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, 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.

Timothy L. Barkus, proceeding pro se, seeks a certificate of appealability

(“COA”) so that he can appeal the district court’s dismissal of his 28 U.S.C. §

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal can be taken from a final order denying relief in a § 2254 proceeding

unless the petitioner first obtains a COA). The district court dismissed Barkus’

§ 2254 petition pursuant to 28 U.S.C. § 2244(d) because the petition was not

timely filed. The district court further rejected Barkus’ claim that he was entitled

to equitable tolling of the limitations period in § 2244(d), concluding that Barkus

had not diligently pursued his claims in either state or federal court and that his

lack of diligence was not excused by lack of legal training. See Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998) (holding that equitable tolling is only

appropriate where petitioner has diligently pursued his claims); Williams v.

Boone, No. 98-6357, 1999 WL 34856, at *3 (10th Cir. 1999) (unpublished

disposition) (collecting cases for proposition that unfamiliarity with the law does

not excuse the failure to file a timely habeas petition). In his request for a COA

and appellate brief, Barkus does not contest the district court’s conclusion that his

§ 2254 petition was not timely filed. Instead, he simply asserts that the district

court erred in refusing to equitably toll the § 2244(d) limitations period.

Barkus is entitled to a COA only upon making a substantial showing of the

denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Barkus can make

such a showing by demonstrating that the issues he seeks to raise are debatable

among jurist of reason, subject to a different resolution on appeal, or deserving of

-2- further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983). This

court has undertaken a close review of Barkus’ application for a COA and

appellate brief, the district court’s order of dismissal, and the entire record. That

close review reveals that the district court’s disposition of Barkus’ equitable

tolling request is not reasonably debatable, subject to a different resolution on

appeal, or deserving of further proceedings. Accordingly this court DENIES

Barkus’ request for a COA for substantially those reasons set out in the district

court order of dismissal dated August 25, 1999, and DISMISSES the appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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