Strader v. State of Kansas

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 30, 2019
• Docket: 19-3241
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS December 30, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

JAMES C. STRADER,

Petitioner - Appellant, No. 19-3241 v. (D.C. No. 5:19-CV-03137-SAC) (D. Kan.) STATE OF KANSAS,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.

This matter is before the court on James Strader’s pro se request for a

certificate of appealability (“COA”). He seeks a COA so he can appeal the

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from

the dismissal of a § 2254 petition unless the petitioner first obtains a COA);

id. § 2244(d)(1) (setting out a one-year limitations period running from the date

on which the state conviction became final). Because Strader has not “made a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal. Strader was found guilty in Kansas state court of aggravated kidnapping,

rape, and aggravated burglary. State v. Strader, No. 95,507, 2007 WL 2992402,

at *1 (Kan. Ct. App. 2007). The Kansas Court of Appeals affirmed Strader’s

convictions in 2007 and the Kansas Supreme Court denied review on April 23,

2008. Id. Strader filed the instant § 2254 petition more than eleven years later,

on July 25, 2019. The district court issued to Strader an order to show cause why

the habeas petition should not be dismissed as time barred. In response, Strader

filed a veritable avalanche of pleadings, some of which, liberally construed,

asserted the district court should overlook the limitations period because Strader

was actually innocent. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)

(holding that actual innocence, if proven, can overcome § 2244(d)’s limitations

period). The district court rejected Strader’s assertion of actual innocence

because it entailed nothing more than bare assertions unsupported by the kinds of

evidence mandated by Schlup v. Delo, 513 U.S. 298, 324 (1995). When,

following the dismissal, Strader continued to file motions only tangentially

related to his habeas petition, the district court imposed upon Strader filing

restrictions designed to foreclose the filing of “repetitive, irrelevant, and lengthy

-2- motions.” 1 Finally, the district court denied Strader’s Fed. R. Civ. P. 59(e)

motion for reconsideration. 2

The obtaining of a COA is a jurisdictional prerequisite to Strader’s appeal

from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, he must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, he must

demonstrate “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Miller-El, 537 U.S. at 336 (quotations omitted). When a district court dismisses a

§ 2254 motion on procedural grounds, a petitioner is entitled to a COA only if he

shows both that reasonable jurists would find it debatable whether he had stated a

valid constitutional claim and debatable whether the district court’s procedural

ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In

evaluating whether Strader has satisfied his burden, we undertake “a preliminary,

1 Notably, these carefully tailored filing restrictions allowed Strader to file the following: (1) an objection to the district court’s filing restrictions; (2) a post- judgment motion under Fed. R. Civ. P. 59(e) or 60(b); and (3) a notice of appeal, and, if necessary, a motion for leave to proceed on appeal in forma pauperis. 2 Because Strader filed his combined request for a COA and appellate brief within thirty days of the district court’s denial of his Fed. R. Civ. P. 59(e) motion, this court has jurisdiction to review all of the relevant district court rulings. See Kimzey v. Flamingo Seismic Solutions, Inc., 696 F.3d 1045, 1049-50 (10th Cir. 2012) (construing opening brief as amended notice of appeal).

-3- though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Miller-El, 537 U.S. at 338. Although Strader need not demonstrate

his appeal will succeed, he must “prove something more than the absence of

frivolity or the existence of mere good faith.” Id. (quotations omitted). As a

further overlay, we review for abuse of discretion the district court’s decision that

Strader is not entitled to have the § 2244(d) limitations period equitably tolled.

See Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

Having undertaken a review of Strader’s appellate filings, the district

court’s various orders, and the entire record before this court pursuant to the

framework set out in Miller-El and Slack, we conclude Strader is not entitled to a

COA. The district court’s resolution of Strader’s § 2254 petition is not deserving

of further proceedings or subject to a different resolution on appeal. In so

concluding, there is no need for this court to repeat the cogent and convincing

analysis set out in the district court’s well-stated orders. Instead, it is enough to

note Strader has not come close to demonstrating the types of extraordinary

circumstances entitling him to equitable tolling, Al-Yousif v. Trani, 779 F.3d

1173, 1179 (10th Cir. 2015), and has completely failed to make out a colorable

showing of actual innocence, Schlup, 513 U.S. at 324. Furthermore, given

Strader’s history in this case of filing numerous repetitive and irrelevant

documents, the district court did not err in any way in imposing upon Strader

-4- carefully and narrowly tailored filing restrictions. Accordingly, this court

DENIES Strader’s request for a COA and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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