                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 21, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                    TENTH CIRCUIT


 MARK ALEX KINKEAD,

          Petitioner - Appellant,
                                                         No. 12-5126
 v.                                          (D.C. No. 4:09-CV-00247-JHP-PJC)
                                                         (N.D. Okla.)
 JANE STANDIFIRD, Warden,

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Mark Alex Kinkead, a state inmate appearing pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition and two motions to supplement the record. Kinkead v.

Standifird, No. 09-CV-247-JHP-PJC, 2012 WL 2995667 (N.D. Okla. July 23,

2012). Because Mr. Kinkead has not made “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss this

appeal.



                                      Background

      On August 14, 2003, Mr. Kinkead pleaded guilty to the crime of lewd acts
against a child, after former conviction of felony, and received a five-year

deferred sentence. R. 442. On January 4, 2007, the state court accelerated the

sentence finding Mr. Kinkead had violated the conditions of probation, and

sentenced him to life imprisonment with all but the first ten years suspended. R.

36. Mr. Kinkead appealed the acceleration, and on September 23, 2008, the

Oklahoma Criminal Court of Appeals (“OCCA”) affirmed. R. 184–89. Mr.

Kinkead then sought post-conviction relief, which was denied. R. 33. The OCCA

affirmed the denial on March 25, 2009. R. 33–35.

      On April 28, 2009, Mr. Kinkead filed a federal habeas petition. R. 5. He

raised three grounds for relief: his criminal prosecution was barred by the statute

of limitations, Oklahoma was wrongly applying the 85% Rule 1 to his sentence,

and his imprisonment was a double jeopardy violation. R. 11–15. Mr. Kinkead

filed two motions to supplement the record, which the court granted, R. 255, 264,

382, and a third motion to supplement the record, which the court denied. R. 383,

460. Mr. Kinkead then filed two more motions to supplement the record (his

fourth and fifth) on December 8, 2011, and December 12, 2011. R. 461, 474. In

his fourth motion, he added that, at the time of his crime, he was not required to

register under the Oklahoma Sex Offender Registration Act (“OSORA”), and


      1
         Under the 85% Rule, a person committing one of an enumerated list of
felonies and convicted of the offense “shall serve not less than eighty-five percent
(85%) of the sentence of imprisonment imposed within the Department of
Corrections.” Okla. Stat. tit. 21, § 12.1 (2011).

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thus, it was error to accelerate his sentence for violating the OSORA. R. 461. In

his fifth motion, he added that it was error to use his 1994 DUI conviction to

enhance his sentence because the conviction was more than ten years old. R. 474.

      On July 23, 2012, the district court denied Mr. Kinkead’s habeas petition

and two pending motions. Kinkead, 2012 WL 2995667, at *9. The court found

that neither motion related back to the original petition, and absent grounds for

statutory or equitable tolling, the claims were time-barred under 28 U.S.C. §

2544(d)(1)(A). Id. at *3–4. On appeal, Mr. Kinkead contends that this was error

because (1) his fourth motion addressed grounds for which there was no relief

when he filed his petition, and (2) his fifth motion related back to his petition.

Aplt. Br. 18–23. As for the habeas petition, the court denied the first two grounds

for relief on the merits, and the third ground as procedurally barred. Kinkead,

2012 WL 2995667, at *5–8. Mr. Kinkead argues that reasonable jurists could

debate these issues. Aplt. Br. 25–26. Finally, Mr. Kinkead argues that the court

abused its discretion when (1) it denied his request for an evidentiary hearing, and

(2) a magistrate judge never issued a Report and Recommendation. Id. at 3, 23.



                                      Discussion

      A COA requires that an applicant make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). The movant must show “that

reasonable jurists could debate whether . . . the petition should have been

                                         -3-
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) (citation and internal quotation marks omitted). Where the district

court dismisses a § 2254 motion on procedural grounds, the movant must

demonstrate that it is reasonably debatable whether (1) the motion states a valid

claim of the denial of a constitutional right and (2) the district court’s procedural

ruling is correct. Id.

      Under AEDPA, a federal court cannot grant habeas relief to a state prisoner

on any claim that a state court resolved on the merits, unless (1) the state court’s

adjudication was contrary to or an unreasonable application of clearly established

federal law, or (2) the adjudication was based on an unreasonable determination

of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d).

We presume that the state court’s determination of a factual issue is correct; the

petitioner has the burden of rebutting this presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

A.    Motions to Supplement the Record

      Section 2244 contains a one-year limitations period which runs from the

date a conviction is deemed final. 28 U.S.C. § 2244(d)(1). Mr. Kinkead’s

conviction became final on December 23, 2008, when the ninety days to seek

certiorari review in the United States Supreme Court expired. 28 U.S.C. §

2101(c). However, prior to that date, Mr. Kinkead filed an application for post-

                                         -4-
conviction relief, which tolled the one-year period until March 26, 2009, the day

after the OCCA affirmed the denial of his application. 28 U.S.C. § 2244(d)(2).

He therefore had until March 26, 2010, to file a habeas petition. Mr. Kinkead’s

original petition, filed on April 28, 2009, was timely, but his fourth and fifth

motions to supplement the record, both filed in December 2011, were untimely.

      To overcome this untimely filing, the motions must relate back to the

original petition, or statutory or equitable tolling must be appropriate. A claim

that is “totally separate and distinct, in both time and type from those raised” in

the original petition does not relate back. United States v. Espinoza-Saenz, 235

F.3d 501, 505 (10th Cir. 2000) (quotation omitted). The pendency of a federal

habeas case does not toll the limitations period. See 28 U.S.C. § 2244(d)(2).

Finally, for equitable tolling to apply, the movant must show “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way” to prevent timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562

(2010). As the district court found, Mr. Kinkead’s motions, which challenged the

acceleration of his sentence, raised new claims that were unrelated to his petition.

Likewise, neither statutory nor equitable tolling was appropriate because the

federal habeas case did not toll the period, and Mr. Kinkead did not exercise

reasonable diligence in pursuing these claims. To the extent Mr. Kinkead

contends that he only discovered the grounds for his fourth motion—that he was

not subject to the OSORA—after he filed his petition, we reject this claim

                                         -5-
because this was a basis the state claimed to accelerate his sentence. See R. 184

n.1. We do not believe that reasonable jurists could debate these conclusions.

B.    Grounds for Habeas Relief

      1.     Ground One

      Mr. Kinkead first argues that his criminal prosecution was barred by the

statute of limitations. Aplt. Br. 8. He claims that his Judgment and Sentence

provides that the crime charged was committed on or about June 9, 1995, but the

Information was not filed until February 7, 2003, which is beyond the five-year

statute of limitations period for the offense. The OCCA rejected this claim,

finding that the Information charged criminal conduct between June 9, 1995 and

July 2, 1998, and therefore, was timely filed on February 7, 2003. On appeal, Mr.

Kinkead argues that the OCCA decision is not on the merits, and thus not entitled

to AEDPA deference, because the OCCA did not consider the Judgment and

Sentence in reaching its decision. Id. at 12. We disagree.

      As an initial matter, Mr. Kinkead raises a question of state law. As a

federal habeas court, we do not review violations of state law. We are limited to

determining whether a conviction violated the Constitution, laws, or treatises of

the United States. 28 U.S.C. § 2254(a). We also find that the OCCA adjudicated

this claim on the merits, even without the Judgment and Sentence, because it

relied on the Information in finding that the charge was timely filed. R. 34.

Moreover, Mr. Kinkead has not established that the OCCA’s decision was

                                        -6-
unreasonable “in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). We find that reasonable jurists could not fairly debate

this conclusion.

      2.     Ground Two

      Mr. Kinkead next argues that Oklahoma is applying his sentence in

violation of the Constitution by denying him earned credits. Aplt. Br. 2, 15–17.

We note that this is a slight variation of the claim Mr. Kinkead raised in his

habeas petition, where he alleged that he was wrongly subject to Oklahoma’s 85%

Rule. Mr. Kinkead now contends that his sentence, “life imprisonment with all

but the first ten years suspended,” is not life sentence, and therefore, Okla. Stat.

tit. 57, § 138(A), which prevents those inmates serving life sentences from

earning credits, does not apply to him. Id. As the district court found, Mr.

Kinkead is serving a sentence of life imprisonment, even though all but the first

ten years were deferred. Kinkead, 2012 WL 2995667, at *7. We do not believe

that reasonable jurists could fairly debate this conclusion.

      3.     Ground Three

      Mr. Kinkead’s third ground for relief is that his imprisonment is a double

jeopardy violation. The district court denied this claim as procedurally barred,

finding neither “cause and prejudice” nor a “fundamental miscarriage of justice”

to excuse the default. Id. at *7–8. As an initial matter, it is not clear whether Mr.

Kinkead seeks a COA on this ground. Mr. Kinkead only refers to this point in the

                                         -7-
opening paragraph of his brief when he states that he appeals the “judgment

denying on ‘procedural grounds’ any federal habeas corpus relief under 28 U.S.C.

sec. 2254.” Aplt. Br. 1. However, construing this pro se pleading liberally, see

Erickson v. Pardus, 551 U.S. 89, 94 (2007), we will assume that he seeks a COA

on this basis as well. Nonetheless, we find that a COA is not warranted because

Mr. Kinkead has failed to demonstrate that it is reasonably debatable whether the

court’s procedural ruling is correct. See Slack, 529 U.S. at 484.

      The district court found that Mr. Kinkead’s double jeopardy claim was

procedurally barred because he failed to raise this claim on direct appeal. The

court rejected Mr. Kinkead’s argument that he had in fact raised this claim,

finding that Mr. Kinkead asserted a different double jeopardy argument on direct

appeal. Kinkead, 2012 WL 2995667, at *7 n.6. On direct appeal, Mr. Kinkead

argued that the acceleration of his sentence subjected him to double jeopardy

because it was based on violations for which his probation officer had already

punished him. However, in his habeas petition, Mr. Kinkead argued that the

double jeopardy violation was his current imprisonment after serving two years of

a deferred sentence. Id. We do not believe that reasonable jurists could debate

the court’s conclusion that these are different claims, and that Mr. Kinkead’s

current double jeopardy claim is procedurally barred.

      Nor do we find that “cause and prejudice” exists for the default or that a

“fundamental miscarriage of justice” will result if Mr. Kinkead’s claim is not

                                        -8-
considered. We note that Mr. Kinkead does not address this point on appeal, and

like the district court, we find that Mr. Kinkead has failed to show any reason to

excuse the default.

C.    Abuse of Discretion Claims

      Mr. Kinkead raises two additional arguments in his brief. He first argues

that the district court abused its discretion in denying his request for an

evidentiary hearing. Aplt. Br. 23. In so asserting, Mr. Kinkead contends that “his

claimed constitutional violations . . . require an evidentiary hearing by due

process to prove or disprove the set of facts that he challenges that his

confinement as unlawful. Id. “A district court’s decision to grant or deny an

evidentiary hearing in a habeas proceeding is reviewed for an abuse of

discretion.” Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010) (quotation

omitted). Because each of Mr. Kinkead’s claims can be resolved on the basis of

the record alone, the district court did not abuse its discretion.

      Mr. Kinkead then argues that the district court abused its discretion when

his case was assigned to a magistrate judge, but the magistrate never issued a

report and recommendation. Aplt. Br. 3. We find nothing in the docket sheet to

indicate that this case was assigned to a magistrate. R. 1–4. As such, we do not

find that the district court abused its discretion in deciding the matter without the

assistance of a magistrate judge.




                                          -9-
We DENY a COA and DISMISS the appeal.

                          Entered for the Court


                          Paul J. Kelly, Jr.
                          Circuit Judge




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