                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 MAR 29 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 J. C. HUNT,

          Petitioner-Appellant,
 v.                                                            No. 05-3015
 RAY ROBERTS; ATTORNEY                                (D.C. No. 04-CV-3416-SAC)
 GENERAL OF KANSAS,                                            (D. Kan.)

          Respondents-Appellees.




                                         ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Petitioner J. C. Hunt, a Kansas state prisoner appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C.

§ 2241 habeas petition on statute of limitations grounds. Because Hunt has failed to make

the requisite showing for the issuance of a COA, we deny his request and dismiss the

appeal.

                                             I.

       According to Hunt’s petition, he was sentenced on March 27, 1992, in Case No.

91CR1395B, to a term of 5 to 10 years for voluntary manslaughter, in violation of Kan.

Stat. Ann. § 21-3403, and 3 to 5 years for aggravated assault, in violation of Kan. Stat.
Ann. § 21-3410, with the two sentences to run concurrently to each other. On that same

date, Hunt was sentenced in a separate criminal case, Case No. 91CR2072, to a term of 5

to 10 years for possession of cocaine, in violation of Kan. Stat. Ann. § 65-4127A. This

latter sentence was allegedly ordered to run consecutively to the sentences imposed in

Case No. 91CR1395B.

       Hunt alleges that, upon his placement in prison, officials from the Kansas

Department of Corrections (KDOC) “illegally aggregated” his sentences “to 10 to 20

years,” thereby denying him the conditional release date that he alleges “was required by

law.” More specifically, Hunt alleges that, had the sentences not been aggregated, they

would have been converted under the Kansas sentencing guidelines (which became

effective on July 1, 1993) and he would have been conditionally released from his first set

of sentences in 1996 (i.e., those imposed in Case No. 91CR1395B), and subsequently

released from prison as early as 1997 and no later than 1999. Thus, he alleges, he is being

illegally detained and is entitled to immediate release from prison.

       Hunt first attempted to obtain relief in the Kansas state courts in October 2003,

when he filed a petition for writ of habeas corpus in the District Court of Butler County.

That court denied relief on February 3, 2004. In doing so, it concluded that KDOC

officials had correctly aggregated Hunt’s sentence under the applicable Kansas statutes

and regulations, and that Hunt therefore was not being held illegally. Hunt appealed that

ruling to the Kansas Court of Appeals, which affirmed the denial of habeas relief on


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August 6, 2004. Hunt then filed a petition for review with the Kansas Supreme Court.

That petition was denied on November 1, 2004.

       On November 12, 2004, Hunt filed his federal habeas petition. After reviewing

the petition, the district court ordered Hunt to show cause why the petition should not be

dismissed as untimely. ROA, Doc. 5. In doing so, the district court concluded “there

[wa]s nothing to suggest that [Hunt] did not discover, or could not have discovered,

KDOC’s aggregation of his consecutive sentences as early as 1992 when he entered

KDOC custody, or certainly by 1996 when he claim[ed] he should have been entitled to

release on his first five to ten year sentence.” Id. at 3. In his response to the show cause

order, Hunt alleged he did not know the precise time he became “suspicious” of his

alleged unconstitutional confinement, but he “believe[d] it to be around December of

2002 or January 2003,” when he received a copy of the journal entries of judgment from

his 1992 convictions. ROA, Doc. 6 at 2. Since that time, Hunt alleged, he had been

diligent in pursuing legal relief. The district court construed Hunt’s allegations as a

request to equitably toll the applicable one-year limitations period, but ultimately

concluded that Hunt “ha[d] not alleged or demonstrated uncontrollable conditions that

prevented his timely filing of a petition for writ of habeas corpus in the federal courts, nor

ha[d] he established due diligence in seeking such relief.” ROA, Doc. 7 at 2.

                                              II.

       To pursue this appeal, Hunt must first obtain a COA. See 28 U.S.C. § 2253(c)(1).


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To be entitled to a COA, Hunt must establish, in pertinent part, “that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court

dismisses a habeas petition on procedural grounds, a petitioner is entitled to a COA only

if he shows that reasonable jurists would find it debatable whether he had stated a valid

constitutional claim and debatable whether the district court’s procedural ruling was

correct). Hunt has failed to make such a showing in this case. According to our review

of the record, the district court’s dismissal of Hunt’s petition as untimely is not deserving

of further proceedings or subject to a different resolution on appeal.

       Accordingly, the request for a COA is DENIED and the appeal is DISMISSED.



                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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