Hare v. Ray, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

CANDY KAY HARE,

Petitioner-Appellant,

v.



HOWARD RAY, Warden;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 00-6143

(W. District of Oklahoma)

(D.C. No. CIV-00-195-C)

ORDER AND JUDGMENT
name="txt*">(*)

Before BRORBY,
name="9">KELLY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This case is before the court on Candy Kay Hare's pro se request for a

certificate of appealability ("COA"). Hare seeks a COA so she can appeal the

district court's dismissal of her 28 U.S.C. § 2254 petition. See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254

petition unless the petitioner first obtains a COA). Hare also seeks to proceed in

forma pauperis on appeal. Because Hare has not made a substantial showing of

the denial of a constitutional right, she is not entitled to a COA and her appeal is

dismissed. See id. § 2253(c)(2).

Hare was convicted in Oklahoma state court of murder in the first degree

and sentenced to life imprisonment. Hare's conviction was affirmed by the

Oklahoma Court of Criminal Appeals ("OCCA") on October 31, 1997. Nearly one

year later, on October 7, 1998, Hare filed an application for post-conviction relief

with the state district court. The application was denied and Hare failed to file a

timely appeal. Hare ultimately filed a second application for post-conviction

relief seeking an appeal out of time. The second application was denied on June

22, 1999 and that denial was affirmed by the OCCA on August 26, 1999. Hare

did not file the instant § 2254 habeas petition until January 28, 2000.

Hare's habeas petition was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In the report and

recommendation ("R & R") prepared by the magistrate judge, the magistrate

raised the timeliness of Hare's petition sua sponte and recommended that the

petition be dismissed because it was filed outside the one-year limitations period

set out in 28 U.S.C. § 2244(d). See 28 U.S.C. 2254(d)(1) (providing

that the

one-year period begins to run on the date petitioner's conviction became final);

Hoggro v. Boone, 150 F.3d 1223, 1226 & n.4 (10th Cir. 1998) (holding that one-year

limitations period is tolled during the period of time petitioner spends

properly pursuing state post-conviction relief but is not tolled during the

pendency of an untimely appeal from the denial of post-conviction relief). The

magistrate judge further concluded that Hare had failed to identify any

circumstances that would support an equitable tolling of the limitations period.

See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).

Hare filed a timely objection to the R & R but failed to demonstrate that

her habeas petition was timely or advance any argument as to why the one-year

limitations period should be equitably tolled. The R & R was adopted by the

district court and Hare's habeas petition was dismissed.

The analysis employed by the magistrate judge to support his conclusion

that Hare's habeas petition was untimely is thoroughly set forth in the R & R.

Hare has presented no argument that the magistrate judge miscalculated the one-year period. Nor

does Hare present any argument as to why the one-year

limitations period should be equitably tolled.
name="txt1a">(1)

Before she is entitled to a COA, Hare must make a "substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Hare may make this

showing by demonstrating the issues raised are debatable among jurists, a court

could resolve the issues differently, or that the questions presented deserve

further proceedings. See Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).

This court has reviewed Hare's application for a COA, her appellate brief, the

district court's Order dated March 22, 2000, the R & R, and the entire record on

appeal. That review clearly demonstrates the district court's dismissal of Hare's

§ 2254 petition as untimely is not deserving of further proceedings or subject to a

different resolution on appeal. Accordingly, we deny Hare's request for a

COA,

deny Hare's request to proceed on appeal in forma pauperis, and

dismiss Hare's

appeal.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1.Hare's COA application contains a

conclusory statement, buried in a

sentence, that she is actually innocent of the crime of which she was convicted.

Even if this court were to consider Hare's argument for the first time on appeal,

her unsupported statement asserting her actual innocence is insufficient to

support the equitable tolling of the one-year limitations period.

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