Hetchler v. Addison

Opinion

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

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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