Marler v. Langford

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 30, 2024
• Docket: 22-3196
• Status: Unpublished

Opinion

Appellate Case: 22-3196 Document: 010110992026 Date Filed: 01/30/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 30, 2024 _________________________________ Christopher M. Wolpert Clerk of Court RANDY ALLEN MARLER,

Petitioner - Appellant,

v. No. 22-3196 (D.C. No. 5:20-CV-03247-JWL-JPO) DONALD LANGFORD, (D. Kan.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________

Petitioner Randy Allen Marler, a prisoner proceeding pro se, filed a habeas

petition challenging his 2008 conviction. The district court dismissed his petition as

time-barred and denied his application for a certificate of appealability (“COA”).

Petitioner now requests a COA from this court. Because no reasonable jurist would

debate the district court’s dismissal on procedural grounds, we deny Petitioner’s

application for a COA and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-3196 Document: 010110992026 Date Filed: 01/30/2024 Page: 2

I.

In May 2008, a Kansas jury convicted Petitioner of rape, aggravated indecent

liberties with a child, and endangering a child. Kansas v. Marler, 223 P.3d 804, 806

(Kan. 2010). In January 2010, the Kansas Supreme Court (“KSC”) affirmed the

convictions and sentences. One year later, Petitioner filed a state habeas motion raising

ineffective assistance of counsel claims. The state trial court denied the habeas petition,

the Kansas Court of Appeals (“KCOA”) affirmed the denial, and the KSC denied review.

Petitioner next filed a second state habeas motion. In 2016, during this habeas

proceeding, Petitioner then discovered a law enforcement interview with the victim’s

mother. Petitioner asserted the State violated his Due Process rights when it failed to

disclose this interview. Brady v. Maryland, 373 U.S. 83, 90 (1963). The state district

court held an evidentiary hearing but denied relief, the KCOA affirmed the denial, and

the KSC again denied review.

Petitioner then filed the present amended 28 U.S.C. § 2254 habeas petition in

April 2022 raising four ineffective assistance claims and a Brady claim. The district

court first determined that § 2244(d)(1)(A) time barred the ineffective assistance claims.

The district court concluded Petitioner timely filed the Brady claim but that the state

court did not unreasonably apply federal law when it disposed of the claim. Thus, the

district court denied the § 2254 petition and denied a COA. Petitioner moved to alter or

amend the judgment, asserting for the first time that the district court should have

considered the limitation period under § 2244(d)(1)(D) instead of (d)(1)(A). The district

court denied the post-judgment motion. Petitioner appeals.

2 Appellate Case: 22-3196 Document: 010110992026 Date Filed: 01/30/2024 Page: 3

II.

We issue a COA only if a petitioner has “made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Since the district court dismissed

Petitioner’s habeas petition on procedural grounds without reaching the petitioner’s

underlying constitutional claims, we will issue a COA only if he shows (1) “jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right” and (2) “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).

Petitioner must satisfy both parts of this threshold inquiry before we will hear the merits

of the appeal. See Gibson v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).

III.

In the underlying habeas petition, Petitioner raised five claims. But in his

combined opening brief and application for COA, Petitioner only addressed the

timeliness of one of his ineffective assistance of counsel claims. Thus, we decline to

address the district court’s dismissal of the other three ineffective assistance of counsel

claims and the Brady claim. See United States v. Cervini, 379 F.3d 987, 994 n. 5 (10th

Cir. 2004) (explaining that the court will not consider issues not raised in the briefs).

In his sole issue on appeal, Petitioner argues that the district court should have

considered his filing timely under § 2244(d)(1)(D) because he lacked key information

from the prosecutor’s affidavit which would justify beginning the limitation period in

2016. But Petitioner, despite multiple opportunities to demonstrate why the district court

should not dismiss his petition as untimely, failed to make an argument based on §

3 Appellate Case: 22-3196 Document: 010110992026 Date Filed: 01/30/2024 Page: 4

2244(d)(1)(D) until his motion to alter or amend or reconsider. The district court

determined this was too late; if Petitioner wanted the district court to consider his

argument based on § 2244(d)(1)(D), he should have raised it before the judgment.

We agree with the district court. A motion to alter or amend or reconsider is not

the opportunity for the court to consider arguments that were available for presentation in

the underlying proceedings. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th

Cir. 1991). While Petitioner had ample opportunity to make this argument in his

response to the district court’s orders, he failed to do so. Because no reasonable jurist

would find the district court’s procedural ruling debatable, the request for a certificate of

appealability is DENIED and this matter is DISMISSED.

Entered for the Court

Joel M. Carson III Circuit Judge