Sellers v. Jordan, (10th Cir. 1999)
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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DANNY RAY SELLERS,
Petitioner-Appellant,
v.
LENORA JORDAN,
Respondent-Appellee.
No. 99-6027
(W. District of Oklahoma)
(D.C. No. 98-CV-1367-T)
ORDER AND JUDGMENT
name="txt*">(*)
Before TACHA, McKAY, 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 court
therefore orders the case submitted without oral argument.
Danny Ray Sellers, proceeding pro se, seeks a certificate of appealability
so he can appeal the district court's denial of his 28 U.S.C. § 2254 habeas
petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be
taken from the denial of a § 2254 habeas petition unless the petitioner first
obtains a certificate of appealability). Because Sellers failed to file his petition
for writ of habeas corpus in a timely manner, this court DENIES Sellers a
certificate of appealability and DISMISSES this appeal. See id.
§ 2244(d)
(imposing a one-year limitation period on an application for a writ of habeas
corpus).
On August 13, 1996, Sellers appeared before the District Court of Alfalfa
County, Oklahoma and, pursuant to a plea agreement, entered a plea of nolo
contendre to a charge of first degree rape. On the same day, Sellers was
sentenced to 20 years imprisonment, 11 of which were suspended. Sellers never
made a motion to withdraw his plea and never challenged his conviction or
sentence on direct appeal. On May 23, 1997, Sellers filed an Application for
Post-Conviction Relief with the state district court (the "first application"). In his
first application, Sellers raised two grounds for relief: (1) that his counsel was
constitutionally ineffective and (2) that he was denied due process of law because
there was no factual basis before the district court to support his plea. The state
district court denied relief on May 23, 1997. Sellers failed to appeal the denial of
post-conviction relief until July 8, 1997 when he filed a Petition in Error with the
Oklahoma Court of Criminal Appeals (the "OCCA"). Because Sellers' Petition in
Error was filed more than thirty days after the entry of the order denying his first
application, the OCCA dismissed Sellers' appeal as untimely. Sellers then filed a
Petition for An Appeal Out of Time with the OCCA. The OCCA denied this
petition because Sellers had failed to first seek relief from the denial of his
Petition in Error from the state district court. Sellers then filed a second
Application for Post-Conviction Relief (the "second application") with the state
district court. In his second application, Sellers raised five grounds for relief, all
of which involved either an ineffective assistance of counsel claim or a denial of
due process claim. The district court denied Sellers' second application on June
4, 1998. Sellers appealed that decision to the OCCA. The OCCA ultimately
affirmed the denial of Sellers' second application.
Sellers filed the instant § 2254 Petition for Writ of Habeas Corpus (the
"habeas petition") with the United States District Court for the Western District of
Oklahoma on September 30, 1998. In his habeas petition, Sellers reasserts the
five ineffective assistance and due process claims he originally raised in the
second application. Sellers' habeas petition was referred to a magistrate judge for
initial proceedings. The magistrate judge issued a Report and Recommendation
in which he recommended that the habeas petition be dismissed because it had not
been filed within one year of Sellers' conviction and sentencing and, therefore,
was untimely. The magistrate judge considered several factors raised by Sellers
in support of the tolling of the one-year limitations period including Sellers'
claims that: (1) the limitations period was tolled during the time the first and
second applications were pending in state court, (2) unconstitutional state action
impeded the filing of the habeas petition, and (3) after-discovered evidence
established that he is actually innocent. The magistrate judge, however,
concluded that Sellers had failed to establish a basis for tolling the limitations
period and recommended that Sellers' habeas petition be dismissed as untimely.
Sellers filed an objection to the magistrate judge's Report and
Recommendation. In that objection, Sellers argued that the magistrate judge had
failed to adequately consider the factors that would support the equitable tolling
of the one-year limitations period. The federal district court, over Sellers'
objections, adopted the Report and Recommendation and ordered Sellers' habeas
petition dismissed as untimely. The district court specifically found that Sellers
had failed to file his habeas petition within the one-year limitations period and
had failed to demonstrate any basis on which the limitations period could be
tolled. Sellers filed an Application for Certificate of Appealability to appeal the
federal district court's denial of his habeas petition. That request was denied and
Sellers appealed that denial to this court.
Sellers is not entitled to receive a certificate of appealability unless he can
make "a substantial showing of the denial of a constitutional right." Id. §
2253(c)(2). Sellers can make such a 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 Barefoot v.
Estelle, 463
U.S. 880, 893 n.4 (1983). Upon de novo review of Sellers' Application for
Certificate of Appealability, the magistrate judge's Report and Recommendation,
the district court's Order, and the entire record on appeal, this court concludes the
district court's resolution of Sellers' claims is not reasonably debatable, subject to
a different resolution on appeal, or deserving of further proceedings. See
id.
Consequently, Sellers has not made a substantial showing of the denial of a
constitutional right and is not entitled to a certificate of appealability. See 28 U.S.C. 2253(c)(2). Accordingly, Sellers' application for a certificate of
appealability is DENIED for substantially those reasons set out in the
magistrate
judge's Report and Recommendation dated December 4, 1998, and the district
court Order dated December 29, 1998, and the appeal is therefore
DISMISSED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
FOOTNOTES
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*. 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.
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