Brumit v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 6, 2025
• Docket: 24-6202
• Status: Unpublished

Opinion

Appellate Case: 24-6202 Document: 18-1 Date Filed: 02/06/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

February 6, 2025 FOR THE TENTH CIRCUIT _______________________________________ Christopher M. Wolpert Clerk of Court DANIEL DEL BRUMIT,

Petitioner - Appellant

v. No. 24-6202 (D.C. No. 5:23-CV-00155-SLP) DAVID ROGERS, (N.D. Okla.)

Respondent - Appellee,

_______________________________________

ORDER _______________________________________

Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges . _______________________________________

This action arises out of a challenge to a criminal conviction for lewd

acts with a child under 16. The defendant, Mr. Brumit, unsuccessfully

appealed in state court and sought habeas relief in federal court roughly

fourteen years later. The federal district court summarily dismissed the

habeas action based on timeliness, and Mr. Brumit wants to appeal. To do

so, he needs a certificate of appealability. 28 U.S.C § 2253(c)(1)(A). We

decline to issue a certificate. 1

1 Mr. Brumit requests leave to amend the petition. We grant this request. Appellate Case: 24-6202 Document: 18-1 Date Filed: 02/06/2025 Page: 2

To address Mr. Brumit’s request, we consider whether his appellate

arguments are reasonably debatable. See Laurson v. Leyba, 507 F.3d 1230,

1232 (10th Cir. 2007) (holding that when the district court denies habeas

relief based on timeliness, the court of appeals can issue a certificate of

appealability only if the district court’s ruling on timeliness is at least

reasonably debatable). In our view, Mr. Brumit’s appellate arguments are

not reasonably debatable.

Mr. Brumit doesn’t appear to deny that his habeas action was

untimely. Federal law provides a one-year period of limitations for federal

habeas actions. 28 U.S.C. § 2244(d)(1). And when Mr. Brumit’s direct

appeal ended, he waited roughly fourteen years to seek habeas relief.

Rather than defend this delay, Mr. Brumit addresses the district court’s sua

sponte consideration of timeliness, the existence of jurisdiction in state

court, the right to relief under a treaty, and the failure to defer to a finding

in state court.

These challenges include the district court’s decision to address

timeliness sua sponte (on the court’s own motion). Mr. Brumit’s challenge

is understandable, but federal law requires the district court to screen the

habeas petition.

This screening process is outlined in the Rules Governing

Section 2254 Cases in the United States District Courts. Rule 4 provides a

mechanism for the district court to screen the petition before the petition is

2 Appellate Case: 24-6202 Document: 18-1 Date Filed: 02/06/2025 Page: 3

submitted to the state. Rule 4, Rules Governing Section 2254 Cases in the

United States District Courts. If the claim appears meritless, the district

court must dismiss the petition without any involvement by the state. Id.

If the petition isn’t dismissed at this stage, the court must order the state to

respond. Id.

The district court followed this process by screening the petition for

timeliness. In screening for timeliness, the court didn’t err. See Day v.

McDonough, 547 U.S. 198, 209 (2006) (“In sum, we hold that district

courts are permitted, but not obliged, to consider, sua sponte, the

timeliness of a state prisoner ’s habeas petition.”). Because the petition was

untimely, the court dismissed the action rather than order the state attorney

general to respond.

Mr. Brumit argues that the state attorney general

• committed a default and

• waived its defenses.

But the court never ordered a response. As a result, the state attorney

general neither defaulted nor waived a defense of timeliness.

Mr. Brumit also argues that (1) the state court lacked jurisdiction and

(2) he was entitled to declaratory relief under a treaty. But even if

Mr. Brumit were right on both arguments, he couldn’t prevail because he

waited too long to file the habeas petition.

3 Appellate Case: 24-6202 Document: 18-1 Date Filed: 02/06/2025 Page: 4

Finally, Mr. Brumit contends that the federal district court should

have deferred to a state court’s finding that he was “similarly situated” to

the claimant in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). But the state

courts didn’t compare Mr. Brumit to the McGirt claimant. So Mr. Brumit

can’t base habeas relief on a state court’s alleged finding of similarity to

the McGirt claimant.

Because Mr. Brumit’s appellate arguments aren’t reasonably

debatable, we deny his request for a certificate of appealability. And in the

absence of a certificate of appealability, we dismiss the matter. 2

Entered for the Court

Robert E. Bacharach Circuit Judge

2 Mr. Brumit also requests leave to proceed in forma pauperis. But in the absence of a reasonably debatable argument, we deny leave to proceed in forma pauperis. See Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007).