                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      February 15, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 HERBERT E. M ORTON, JR.,

              Petitioner-A ppellant,                     No. 06-3333
       v.                                                 D. Kansas
 RAY ROBERTS, W arden, El Dorado                (D.C. No. 06-CV-3031-SAC)
 Correctional Facility; PHILL KLINE,
 Attorney General of Kansas,

              Respondents-Appellees.



                                       OR DER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      This matter is before the court on Herbert E. M orton’s request for a

certificate of appealability (“COA”). M orton seeks a COA so he can appeal the

district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a state court” unless the petitioner first obtains a COA).

Because M orton has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.
      M orton was convicted in Kansas state court on charges of aggravated

kidnaping, aggravated battery, and domestic battery. On direct appeal, the Kansas

Court of A ppeals affirmed the aggravated kidnaping and domestic battery

convictions, reversed the aggravated battery conviction on the ground the trial

court erred in failing to give a lesser-included-offense instruction, and remanded

for further proceedings in the district court. The Kansas Supreme Court denied

review. Thereafter, M orton filed a “M otion to Correct Illegal Sentence” in the

trial court. In that motion, M orton asserted that in setting aside the aggravated

battery conviction, the Kansas Court of Appeals had eliminated the only conduct

that could have supported the bodily harm element of the aggravated kidnaping

conviction. Thus, according to M orton, the trial court was obligated to set aside

his aggravated kidnaping conviction. Relying on the misdemeanor domestic

battery conviction, the trial court denied M orton’s motion. On appeal, the Kansas

Court of A ppeals concluded the trial court had erred in relying on M orton’s

domestic battery conviction to support the bodily harm element of the aggravated

kidnaping conviction. The Kansas Court of Appeals nevertheless affirmed the

denial of M orton’s motion, concluding the jury was properly instructed on the

elements of aggravated kidnaping and that there was ample independent evidence

at trial to support the jury’s finding of bodily harm. The K ansas Supreme Court

denied review .




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      M orton then filed the instant § 2254 habeas corpus petition. In response,

the district court issued a lengthy and comprehensive memorandum and order

directing M orton to show cause why his § 2254 petition should not be dismissed

as untimely under the provisions of 28 U.S.C. § 2244(d)(1). W hen M orton failed

to offer a substantive response to the district court’s calculations as to the running

of the statute of limitations, the district court dismissed M orton’s petition

because, inter alia, it 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). To satisfy this

standard, M orton must show “that 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. M cDaniel, 529 U.S. 473, 484 (2000) (quotation

omitted). That is, M orton must show the district court’s resolution of his petition

was either “debatable or wrong.” Id. Because M orton’s petition was dismissed

on procedural grounds, he must make both a substantial showing of the denial of a

constitutional right and also show “jurists of reason would find it debatable . . .

whether the district court was correct in its procedural ruling.” Id.

      On appeal, M orton does not even address the district court’s conclusion

that his § 2254 habeas petition is barred by the statute of limitations set out in

§ 2244(d)(1). Accordingly, he has completely failed to carry his burden of

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demonstrating the district court’s procedural ruling is reasonably subject to

debate. M orton’s request for a COA is DENIED and his appeal is hereby

DISM ISSED.

                                       Entered for the Court
                                       Elisabeth A . Shumaker, Clerk



                                       By:
                                               Deputy Clerk




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