                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 27, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 STEPHEN D. SEXTON,

          Petitioner-Appellant,
 v.                                                      No. 08-3329
 DAVID MCKUNE, Warden, Lansing                  (D.C. No. 08-CV-3208-SAC)
 Correctional Facility; STEPHEN N.                       (D. Kan.)
 SIX, Attorney General of Kansas,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Stephen D. Sexton, a Kansas state prisoner appearing pro se, 1 seeks a

certificate of appealability (“COA”) in order to challenge the district court’s

denial of his 28 U.S.C. § 2254 application for federal habeas relief. Because

Sexton has failed to satisfy the standards for the issuance of a COA, we deny his

request and dismiss the matter.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        As he is proceeding pro se, we have construed Sexton’s pleadings
liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
                                         I

      Sexton was tried by jury and found guilty of second-degree murder. Sexton

was sentenced to a term of imprisonment of 15 years to life. The Kansas Supreme

Court affirmed the conviction on December 9, 1994. State v. Sexton, 886 P.2d

811 (Kan. 1994).

      Sexton filed an action for post-conviction relief pursuant to Kan. Stat. Ann.

§ 60-1507 on December 14, 1995. The state district court denied relief, and the

Kansas Court of Appeals affirmed. Sexton v. State, 969 P.2d 262 (Kan. App.

1998) (unpublished table decision). It does not appear that Sexton sought review

of this decision by the Kansas Supreme Court. 2

      Seven years later, in January 2006, Sexton filed a second action for post-

conviction relief pursuant to Kan. Stat. Ann. § 60-1507. That action was

dismissed as successive in March 2006, and the Kansas Court of Appeals affirmed

in December 2007. The Kansas Supreme Court denied review in May 2008.

      On August 15, 2008, Sexton filed his § 2254 habeas petition with the

federal district court. The district court issued an order on August 26, 2008,

requesting that Sexton show cause why the court should not dismiss his petition

as untimely because of the one-year limitation period applicable to § 2254



      2
        We need not reach the matter of procedural default due to Sexton’s failure
to seek review by the Kansas Supreme Court. The petition’s untimeliness alone is
a sufficient reason for dismissal.

                                         2
petitions. Sexton responded, arguing that the statute of limitation should be

equitably tolled because (1) his attorney had provided ineffective assistance of

counsel; (2) he had limited access to the prison library; (3) he was not assisted by

a lawyer, or any other legal service for prisoners, in preparing his § 2254 petition;

(4) he is unfamiliar with the legal system and was not informed of the one-year

limitation deadline; and (5) he is actually innocent.

      The district court concluded that Sexton had not demonstrated the “rare and

exceptional circumstances” required for equitable tolling, Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000), particularly in light of Sexton’s “failure to

commence any action between September 1998 and January 2006 [which]

supports a conclusion that he has not diligently pursued his claims.” Order of

Oct. 8, 2008 (“Order”) at 4 (Doc. 7) (citing Burger v. Scott, 317 F.3d 1133, 1141

(10th Cir. 2003) (“[T]his Circuit has generally declined to apply equitable tolling

when it is facially clear from the timing of the state and federal petitions that the

petitioner did not diligently pursue his federal claims.”)).

      The district court determined that Sexton had previously raised his

ineffective assistance of counsel claim in his first action for state post-conviction

relief, and thus it was not subject to equitable tolling. Order at 3. Sexton’s

limited access to the prison law library did not warrant equitable tolling where he

failed show how the lack of access caused the delay in filing. Order at 4 (citing

Marsh v. Soares, 223 F.3d 1217, 1221 (10th Cir. 2000)). Sexton’s pro se status

                                          3
and his unfamiliarity with the legal system and the one-year limitation period also

did not provide a basis for equitable tolling. Order at 4 (citing Marsh, 223 F.3d at

1220). Sexton’s claim of actual innocence did not provide a basis for equitable

tolling because it was not supported by new evidence, much less new evidence

that makes it “more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.” Order at 3-4 (citing House v. Bell,

547 U.S. 518, 537 (2006)). Sexton’s petition was dismissed by the district court

as time-barred.

      Sexton subsequently filed pleadings that the district court construed as a

Federal Rule of Civil Procedure 59(e) motion to alter or amend the judgment

dismissing Sexton’s § 2254 petition. On December 15, 2008, the district court

denied the motion for essentially the same reasons as set forth in the October 8,

2008, Order. (Doc. 16.) The court also denied Sexton a COA. Sexton has since

filed a timely notice of appeal, as well as an application for a COA.

                                          II

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). A state prisoner may appeal from the denial of federal habeas relief

under 28 U.S.C. § 2254 only if the district court or this court first issues a COA.

28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In order to make that showing, a prisoner must demonstrate “that

                                          4
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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted).

                                         III

      Sexton seeks a COA with respect to the issues raised in his federal habeas

petition. For the reasons that follow, we conclude that he has failed to satisfy the

standards for issuance of a COA because his petition is time-barred.

      Section 2254 petitions have a one-year statute of limitation under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA):

             (1) A 1-year period of limitation shall apply to an
             application for a writ of habeas corpus by a person in
             custody pursuant to the judgment of a State court. The
             limitation period shall run from the latest of—

                   (A) the date on which the judgment became final by
                   the conclusion of direct review or the expiration of
                   the time for seeking such review;

                   (B) the date on which the impediment to filing an
                   application created by State action in violation of
                   the Constitution or laws of the United States is
                   removed, if the applicant was prevented from filing
                   by such State action;

                   (C) the date on which the constitutional right
                   asserted was initially recognized by the Supreme
                   Court, if the right has been newly recognized by the
                   Supreme Court and made retroactively applicable to
                   cases on collateral review; or


                                          5
                    (D) the date on which the factual predicate of the
                    claim or claims presented could have been
                    discovered through the exercise of due diligence.

             (2) The time during which a properly filed application for
             State post-conviction or other collateral review with
             respect to the pertinent judgment or claim is pending shall
             not be counted toward any period of limitation under this
             subsection.

28 U.S.C. § 2244(d).

      The district court in this case correctly outlined the controlling standards

for assessing the timeliness of a federal habeas petition. As the district court

noted, the limitation period for a habeas corpus action is ordinarily one year.

Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28 U.S.C. §

2244(d)(1)). For convictions prior to the 1996 effective date of the AEPDA, the

petitioner must commence an action within one year of the effective date. United

States v. Simmonds, 11 F.3d 737, 746 (10th Cir. 1997) (overruled on other

grounds). The one-year limitation period is, however, tolled by “[t]he time during

which a properly filed application for State post conviction relief . . . is pending.”

Id. § 2244(d)(2). Finally, the limitation period may also, in rare circumstances,

“be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998). Equitable tolling “is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” Marsh, 223 F.3d at 1220.

      The district court determined that: (1) Sexton’s conviction became final

                                          6
prior to the 1996 effective date of the AEDPA, so that the one-year limitation

period for filing a federal habeas petition did not begin to run until the effective

date of the statute; (2) Sexton’s pending post-conviction action tolled the

limitation period until the Kansas Court of Appeals denied his post-conviction

action in 1998; (3) the one-year limitation period therefore expired in 1999; and

(4) Sexton failed to state a sufficient basis for equitable tolling of the limitation

period.

      After reviewing the record on appeal, we fully agree with the district court

that Sexton’s federal habeas petition was untimely filed, and we conclude that no

reasonable jurist could find it debatable whether the district court was correct in

its procedural ruling. Sexton is, therefore, not entitled to a COA on his claims.

      We DENY Sexton’s request for a COA and DISMISS the matter.


                                               Entered for the Court,


                                               Mary Beck Briscoe
                                               Circuit Judge




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