Van Duzer v. Simms

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 30, 2018
• Docket: 18-2080
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 30, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court GEORGE JAY VAN DUZER,

Petitioner - Appellant, No. 18-2080 v. (D.C. No. 2:18-CV-00405-JB-LF) (D. N.M.) WARDEN SIMMS; ACTING WARDEN HORTON, in interim,

Respondents - Appellees. _________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________

Applicant George Van Duzer seeks a certificate of appealability (COA) to appeal

the denial by the United States District Court for the District of New Mexico of his

application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring

COA to appeal final order in a habeas proceeding in which the detention complained of

arises out of process issued by a state court). We decline to grant a COA and dismiss the

appeal because the district court properly determined that the application was untimely.

A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the [application] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). In other words, the applicant must show that the district court’s resolution of

the constitutional claim was either “debatable or wrong.” Id. “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in dismissing the

[application] or that the [applicant] should be allowed to proceed further.” Id.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), an applicant

in custody pursuant to a state-court judgment has one year after his conviction becomes

final to seek relief under § 2254. See 28 U.S.C. § 2244 (d)(1)(A). The time limit may be

tolled while “a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending.” Id. § 2244 (d)(2).

Applicant filed his § 2254 application on April 30, 2018, twenty-three years after

his unappealed conviction and sentence. The district court thoroughly explained why the

application was untimely. No reasonable jurist could debate that decision. The only

thing we add is that Applicant is incorrect in arguing (apparently for the first time) that

AEDPA does not apply to him because his conviction predated enactment of that statute.

The statute applies because his application postdates the effective date of the statute. See

Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (§ 2254 applicants convicted

before AEDPA are under a one-year limitations period beginning on statute’s effective

date); Spencer v. Sutton, 239 F.3d 626, 628 (4th Cir. 2001) (“AEDPA was signed into

law on April 24, 1996, and became effective immediately . . . . [For prisoners] whose

2 criminal convictions preceded enactment of the AEDPA, the limitations period began to

run with the AEDPA’s effective date on April 24, 1996, and ended on April 24, 1997.”).

We DENY a COA and DISMISS the appeal.

Entered for the Court

Harris L Hartz Circuit Judge