Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court LEVI LOVE,
Petitioner - Appellant,
v. No. 23-3150 (D.C. No. 5:22-CV-03276-JWL) DAN SCHNURR, Warden, Hutchinson (D. Kan.) Correctional Facility,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________
Levi Love, a state inmate proceeding pro se, seeks a Certificate of
Appealability (COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2241 petition. For the reasons explained below, we deny Love a COA.
BACKGROUND
Love was convicted of first-degree murder and attempted first-degree
murder for shooting two people and killing one. The trial court sentenced Love
to life imprisonment on the murder charge and 68 years’ imprisonment on the
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 2
attempted murder charge, with those sentences running concurrently. At
sentencing, the trial court noted that Love would have to serve 25 years before
he was eligible for parole on his life sentence. The Kansas Supreme Court
affirmed his convictions on direct review. State v. Love, 986 P.2d 358, 365
(Kan. 1999).
Love then petitioned for post-conviction relief in Kansas state court,
raising claims for ineffective assistance of counsel and claiming that newly
discovered evidence warranted a new trial. After the Kansas trial court denied
his petition and the Kansas Court of Appeals affirmed, Love petitioned the
federal district court for the same relief under 28 U.S.C. § 2254. The district
court denied his petition, and we denied a COA. Love v. Roberts, 259 F. App’x
58, 59 (10th Cir. 2007) (unpublished).
Over a decade later, Love filed another petition for post-conviction relief
in Kansas state court. Love petitioned for relief because, according to him, the
Kansas Department of Corrections (DOC) was illegally forcing him to serve his
68-year sentence. More specifically, Love argued that his life-imprisonment
sentence should control when he is eligible for parole because it is longer than
his sentence for 68 years. Because Kansas allows some prisoners serving life
sentences to be eligible for parole after twenty-five years, Love asserted that
the DOC was illegally denying him eligibility for parole by listing his 68-year
sentence as the sentence that “controlled [his] prison term and postrelese [sic]
supervision.” R. 178. Thus, Love maintains that he should not have to serve his
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68-year sentence. The trial court rejected his petition, and the Kansas Court of
Appeals affirmed. Love v. Schnurr (State Appeal), 481 P.3d 193, 2021 WL
745418, at *5 (Kan. Ct. App. 2021) (unpublished table decision). The Kansas
Court of Appeals ruled that Love’s petition was procedurally barred because
Love had exhausted his administrative remedies too late. Id. at *4. To exhaust
his administrative remedies, Love needed to file a grievance with the warden
“within 15 days from the date of the discovery of the event giving rise to the
grievance.” Kan. Admin. Regs. § 44-15-101b; see id. § 44-15-102(b). And
“[n]o grievance, regardless of time of discovery, shall be filed later than one
year after the event.” Id. § 44-15-101b. Had he exhausted his administrative
remedies by filing a timely grievance, Love would then have had 30 days to file
a habeas petition. Kan. Stat. Ann. § 60-1501(b). The Kansas Court of Appeals
found that Love first learned of the allegedly illegal change to his sentence in
2014 but waited to file a grievance until July 2018. State Appeal, 2021 WL
745418, at *4. So the court dismissed Love’s petition because his untimely
grievance served as a jurisdictional bar to judicial review. Id.
The court also rejected the merits of Love’s argument by ruling that
parole “is entirely discretionary . . . and might never be granted.” Id. at *2
(citing Kan. Stat. Ann. § 21-6821). The court explained that “even if Love was
paroled on his life sentence, he would not be released [from prison] until he has
served a total of 816 months (68 years) on his other concurrent sentence.” Id.
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Thus, the court noted, whatever sentence the DOC listed as “Love’s controlling
sentence appears, on its face, to be of academic interest only.” Id.
Given that ruling, Love brought another petition in federal court, this
time under 28 U.S.C. § 2241. In this petition, Love challenged his parole-
eligibility status, cabining his arguments to four legal theories: (1) deprivation
of a “[p]rotected liberty interest . . . without due process,” (2) “[v]iolation of
the Double Jeopardy Clause and § 10 of the Kansas Bill of Rights,”
(3) violation of Kansas procedural statutes for his procedural default in state
court, and (4) fraud and libel against the DOC for denying him parole. R. 12–
13. The district court denied Love’s petition, finding it procedurally barred and
rejecting it on the merits. Love v. Schnurr (Court Order), No. 22-3276, 2023
WL 4295368, at *5–7 (D. Kan. June 30, 2023). Love now seeks a COA to
challenge the district court’s denial of his § 2241 petition.
STANDARD OF REVIEW
Love must obtain a COA before we can address the merits of his habeas
petition, as it is a jurisdictional prerequisite to our review. See Montez v.
McKinna, 208 F.3d 862, 867–69 (10th Cir. 2000). We deny an applicant’s COA
“if no reasonable jurist would find it debatable that his application (1) fails to
state a valid constitutional claim or (2) is procedurally barred.” Winn v. Cook,
945 F.3d 1253, 1257 (10th Cir. 2019).
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DISCUSSION
We first determine the scope of our review, and then we consider the
merits of Love’s application.
I. Scope of Review
The district court entered judgment denying Love’s § 2241 petition on
June 30, 2023, but Love filed his notice of appeal on August 22, 2023—after
the 30-day appellate deadline passed. 1 See Fed. R. App. P. 4(a)(1)(A) (requiring
appellants to file notice of appeal within 30 days of final judgment unless a
motion is filed that tolls the deadline). Yet he timely filed two motions in the
district court before the deadline passed—a motion under Rule 59(e) on July 7,
and a “motion for rehearing” on July 27. R. 4. The district court denied those
motions on July 10 and July 28, respectively. We know that the Rule 59(e)
motion tolls the appellate deadline. See Fed. R. App. P. 4(a)(4)(A)(iv). So the
30-day clock began to run when the motion was denied on July 10, unless the
motion for rehearing is likewise tolling: then the clock would have started on
July 28. If the motion for rehearing is not tolling, our review is limited to the
denial of that motion; but if it is tolling, then we can review the merits of the
district court’s denial of Love’s § 2241 petition. Cf. Lebahn v. Owens, 813 F.3d
1300, 1304–05 (10th Cir. 2016).
1 At the bottom of the notice of appeal, Love (or someone) handwrote, “filed 8-2-23; refiled 8-22-23.” R. 521. Nothing in the record shows that the notice was indeed originally filed on August 2, 2023. So we take August 22, 2023, as the official filing date for Love’s notice of appeal. 5 Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 6
No matter what it is titled, a motion tolls the time to file an appeal under
Rule 59(e) “if it is served within the specified time period and seeks relief
appropriate to Rule 59(e) by questioning the correctness of the underlying
judgment.” See Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997,
1004 (10th Cir. 2017). Though called a motion for rehearing, Love’s motion
satisfies both the timing and substance requirements for us to treat it as tolling.
For timing, Love filed the motion for rehearing within 28 days after the district
court entered judgment—the judgment was entered June 30; the motion for
rehearing was filed July 27. For substance, the motion for rehearing
“question[s] the correctness of the underlying judgment” by arguing that the
DOC illegally changed Love’s sentence. See id. Given the timing and substance
of the motion, we construe Love’s motion for rehearing as a tolling motion
under Rule 4. And so, we proceed to the merits.
II. Merits
As a state prisoner seeking appellate review of the dismissal of his
§ 2241 petition, Love must first obtain a COA. See Montez, 208 F.3d at 867–69.
To do so, Love must show that “jurists of reason would find it debatable”
(1) “whether the petition states a valid claim of the denial of a constitutional
right” and (2) “whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In his opening brief, Love argues
that the district court erred by denying his habeas petition and declining to hold
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an evidentiary hearing. He also argues that the district court judge “should have
recused himself.” Op. Br. at 4. We consider each in turn.
A. Denial of Habeas Petition
The district court denied Love’s habeas petition on procedural grounds
and on the merits. Court Order, 2023 WL 4295368, at *4–6. So Love must
show that reasonable jurists would debate whether his “petition states a valid
claim of the denial of a constitutional right” and whether the district court erred
in its procedural ruling. Slack, 529 U.S. at 484.
1. Constitutional Claims
In Love’s habeas petition, he raises claims based on purported
constitutional and state-law violations. But his “claims of state law violations
are not cognizable in a federal habeas action.” Montez, 208 F.3d at 865. So we
only address his federal constitutional claims, of which there are two.
Love claims that the DOC violated the Due Process and Double Jeopardy
Clauses by changing his sentence and denying him parole eligibility. To
support his claims, Love argues that his life-imprisonment sentence should
control when he receives parole and that he should be eligible for parole
because he has served over 25 years of his life sentence. Thus, Love asserts that
the DOC is illegally forcing him to serve his 68-year sentence by declining to
grant him parole.
To start, Love has not stated a valid Due Process violation. To show a
Due Process violation, Love must show that he was deprived of a protected
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liberty interest. Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 569–70
(1972). Because there is “no constitutional or inherent right to receive parole,”
federal law does not create a liberty interest in parole. Malek v. Haun, 26 F.3d
1013, 1015 (10th Cir. 1994). So to succeed, Love must show that Kansas law
creates a liberty interest in parole. See id. But “as the Kansas Supreme Court
and panels of this court have held, the Kansas parole statute does not create a
liberty interest as would be required to maintain a due-process claim.” Heath v.
Norwood, 772 F. App’x 706, 708 (10th Cir. 2019) (unpublished) (citing
Gilmore v. Kansas Parole Bd., 756 P.3d 410, 415 (Kan. 1988)). Thus,
reasonable jurists would not debate whether Love has stated a Due Process
claim.
Likewise, Love has not validly claimed a Double Jeopardy Clause
violation. The Double Jeopardy Clause protects defendants against three
separate constitutional violations: “(1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense.” Anderson v.
Mullin, 327 F.3d 1148, 1153 (10th Cir. 2003) (cleaned up). In one prosecution,
Love was convicted of two offenses—murder in the first degree and attempted
murder in the first degree. And he was sentenced to one punishment for each
offense: life imprisonment for murder and 68 years’ imprisonment for
attempted murder. Though Love was denied parole eligibility, his sentence has
not changed. See Carroll v. Simmons, 89 F. App’x 658, 663 (10th Cir. 2004)
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(“Because the denial of parole does not change the length of a prisoner’s
sentence, it is not the imposition of more than one punishment for the same
offense as prohibited by the double jeopardy clause.” (citation omitted)). And
even if he were eligible for parole for his life-imprisonment sentence, Love’s
68-year sentence is a separate sentence for a separate offense, not a subsequent
“punishment[] for the same offense.” Anderson, 327 F.3d at 1153. Thus, Kansas
can force Love to serve his 68-year sentence without offending the Double
Jeopardy Clause. As a result, reasonable jurists would not debate whether Love
has stated a claim for the denial of a constitutional right.
2. Procedural Default
The district court ruled that Love’s claims were procedurally barred
because his habeas petition in state court was dismissed on state procedural
grounds. See Court Order, 2023 WL 4295368, at *4–5. The district court also
found that Love had not shown good cause and prejudice to excuse the
procedural default. Id. at *5. As explained below, reasonable jurists would not
debate this conclusion.
“When a state court dismisses a federal claim on the basis of
noncompliance with adequate and independent state procedural rules, federal
courts ordinarily consider such claims procedurally barred and refuse to
consider them.” Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012)
(citing Clayton v. Gibson, 199 F.3d 1162, 1170–71 (10th Cir. 1999)). A state
procedural rule is adequate if it is “firmly established and regularly followed.”
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Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558
U.S. 53, 60–61 (2009)). A state procedural ruling is independent if “it relies on
state law, rather than federal law.” Black v. Workman, 682 F.3d 880, 918 (10th
Cir. 2012) (quoting Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008)).
The Kansas Court of Appeals dismissed Love’s case because he failed to
timely file a grievance. See State Appeal, 2021 WL 745418, at *4–5 (citing
Kan. Admin. Regs. § 44-15-101b). This state procedural ruling is adequate
because the time limits in § 44-15-101b have been firmly established and
regularly followed by Kansas courts. See, e.g., Walling v. Riggin, 350 P.3d
1138, 2015 WL 3875085, at *4 (Kan. Ct. App. 2015) (unpublished table
decision); Beauclair v. Heimgartner, 345 P.3d 296, 2015 WL 1514255, at *3–4
(Kan. Ct. App. 2015) (unpublished table decision); Thomas v. McKune, 303
P.3d 727, 2013 WL 3455828, at *3 (Kan. Ct. App. 2013) (unpublished table
decision). The Kansas Court of Appeals’ ruling is also independent because it
relied exclusively on state procedural rules and not any federal law. See State
Appeal, 2021 WL 745418, at *4–5.
A state procedural default nonetheless may be excused if the petitioner
can show “cause and prejudice” or a “fundamental miscarriage of justice.”
Tyron v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (citation omitted). To
show cause, a petitioner must demonstrate that “something external to the
petitioner, something that cannot fairly be attributed to him, impeded his
efforts to comply with the State’s procedural rule.” Id. (quoting Maples v.
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Thomas, 565 U.S. 266, 280 (2012)). The petitioner then must show “not merely
a substantial federal claim, such that the errors at trial created a possibility of
prejudice, but rather that the constitutional violation worked to his actual and
substantial disadvantage.” Shinn v. Ramirez, 596 U.S. 366, 379 (2022) (cleaned
up). To show a fundamental miscarriage of justice, a petitioner must make a
credible claim of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392
(2013). The actual-innocence exception “is a markedly narrow one” that is
“implicated in extraordinary cases where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Magar v. Parker,
490 F.3d 816, 820 (10th Cir. 2007) (cleaned up).
First, Love has not shown cause and prejudice because he has not claimed
that “something external” prevented him from complying with § 44-15-101b.
See Tyron, 81 F.4th at 1139 (emphasis omitted). Instead, he argues that he
discovered the allegedly illegal change to his sentence on October 5, 2017, and
filed a grievance on July 27, 2018. Because one year had not passed, he argues
that his grievance was timely. But even if Love first discovered the alleged
change in October 2017, his grievance was still barred by § 44-15-101b. That
regulation requires prisoners to file a grievance “within 15 days from the date”
of discovery and mandates that “[n]o grievance, regardless of time of
discovery, shall be filed later than one year after the event.” Section 44-15-
101b; see also Van Houten v. Marlett, 330 F. App’x 161, 163 (10th Cir. 2009)
(unpublished) (“Thus, the sentence permitting filing up to ‘one year after the
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event’ is an additional limit on the filing time, not an extension.”). So if Love
discovered the allegedly illegal change on October 5, 2017, then he had 15 days
from that date to file a grievance. And even if he did file within 15 days, then
his grievance would still be untimely if it was filed more than a year after the
DOC allegedly changed his sentence. See id. Thus, Love has not shown cause
to excuse his default.
Second, Love also has not shown a fundamental miscarriage of justice
because he has not made a credible claim for actual innocence. At Love’s trial,
the state showed that the victim identified Love as the shooter in a pretrial
photo lineup. Now, Love argues that the victim lied to the police and falsely
identified Love. To support his claim, Love has produced an affidavit from the
victim in which the victim testifies that he lied to the police and falsely
identified Love. Love has also produced affidavits from other people who have
heard the victim say that he falsely identified Love in the lineup. But Love’s
recanted-identification evidence is not enough. In general, courts disfavor
recantations as the basis for actual innocence claims because “recanted
testimony is notoriously unreliable, ‘easy to find but difficult to confirm or
refute: . . . witnesses with personal motives change their stories many times,
before and after trial.’” Case v. Hatch, 731 F.3d 1015, 1044 (10th Cir. 2013)
(citation omitted). We need not speculate about the victim’s personal motive
for recanting here because he explains it in his affidavit. The victim testifies,
“The only reason why I am telling the truth in this affidavit is to get even with
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the court for giving my nephew . . . a life sentence after [the state] had used me
to convict Levi Love.” Suppl. R. 10. The victim also notes that, if Love gets a
new trial, the victim will testify for the state—and against Love again—but
only if the state “give[s] [his] nephew a new trial, or some type of deal.” Id.
Because the victim is leveraging his recantation to help his nephew, Love has
not made the “credible” showing necessary to prove actual innocence. 2 See
McQuiggin, 569 U.S. at 392.
Because Love has failed to show cause and prejudice or a fundamental
miscarriage of justice, reasonable jurists would not debate the district court’s
procedural ruling.
B. Denial of Evidentiary Hearing
Love contends that the district court erred by not holding an evidentiary
hearing. “A habeas petitioner can obtain an evidentiary hearing in federal court
by (1) showing he was diligent in developing the factual basis for his claim in
state court; and (2) asserting a factual basis that, if true, would entitle him to
habeas relief.” Hanson v. Sherrod, 797 F.3d 810, 836 (10th Cir. 2015) (cleaned
2 Love also has not identified a constitutional violation that would have resulted in his alleged wrongful conviction. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”). As we have repeatedly noted, a claim of actual innocence is not enough: it must be predicated on a constitutional violation for us to grant relief. See, e.g., Farrar v. Raemisch, 924 F.3d 1126, 1134 (10th Cir. 2019) (“Actual innocence and false testimony by a private citizen do not entail constitutional violations triggering habeas relief.”). 13 Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 14
up). As discussed above, Love has stated no claims that would entitle him to
habeas relief. Thus, the district court did not err by denying Love an
evidentiary hearing.
C. Recusal
Love argues that the district court judge should have recused himself
because the judge was involved in Love’s first habeas petition. During Love’s
first habeas petition, Love sent “correspondence” to the chief judge for the
District of Kansas—the same judge who presided over Love’s current § 2241
petition. R. 517. In that correspondence, Love “lodged a complaint about his
case.” Id. The then-chief responded in an order that “a chief judge does not
have express or implied authority to take action in litigation which has been
assigned to another judge of the court and remains pending before that judicial
officer.” Id. From this, Love argues that the district judge is “very much
interested in Mr. Love’s” current habeas petition. Op. Br. at 4.
Even if a judge does not have a personal bias in a proceeding, a judge
still must recuse himself when “his impartiality might reasonably be
questioned.” United States v. Wells, 873 F.3d 1241, 1250 (10th Cir. 2017)
(quoting 28 U.S.C. § 455(a)). This standard mandates recusal when a
reasonable person, knowing all the circumstances, “would harbor doubts about
the judge’s impartiality.” Id. at 1251 (citation omitted). But “adverse rulings
cannot in themselves form the appropriate grounds for disqualification.” Id. at
1252 (citation omitted).
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No reasonable person would “harbor doubts” about the district court
judge’s impartiality here. See id. at 1251 (citation omitted). The district court
judge’s only involvement in Love’s prior habeas petition was the judge’s
entering an order that explained why he lacked authority to address Love’s
complaints. Because “adverse rulings cannot in themselves form the appropriate
grounds for disqualification,” the district court judge properly declined to
recuse himself from the present petition. See id. at 1252 (citation omitted); id.
at 1251 (noting that judges have “a strong duty to sit” when recusal is not
warranted). Thus, the district court did not err.
CONCLUSION
For all these reasons, we deny Love a COA.
Entered for the Court
Gregory A. Phillips Circuit Judge