                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    January 31, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT




MARSHALL A. TILLMAN,

             Petitioner-Appellant,
                                                       No. 07-3299
       v.                                               (D. Kansas)
                                                (D.C. No. 07-CV-3099-SAC)
STATE OF KANSAS; PHILL KLINE,
Kansas Attorney General,

             Respondents-Appellees.


                                     ORDER


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.


      This matter is before the court on Marshall A. Tillman’s pro se request for

a certificate of appealability (“COA”). Tillman seeks a COA so he can appeal

the denial of his 28 U.S.C. § 2254 habeas corpus petition. 28 U.S.C.

§ 2253(c)(1)(A) (providing 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 Tillman has not “made a substantial showing of the denial of a

constitutional right,” this court denies his request for a COA and dismisses this

appeal. Id. § 2253(c)(2).
      Tillman pleaded no contest in Kansas state court to a single count of rape.

On June 19, 2002, the state trial court sentenced Tillman to term of imprisonment

of seventy-three months. More than one year later, on June 30, 2003, Tillman

filed a petition for post-conviction relief in state court. 1 The state trial court

denied the petition, the Kansas Court of Appeals affirmed the denial of relief, and

the Kansas Supreme Court denied review on May 9, 2006. Tillman then filed the

instant § 2254 petition approximately eleven months later, on April 11, 2007.

      The respondent filed a motion to dismiss Tillman’s petition on the basis of

the limitations period set out in 28 U.S.C. § 2244(d). In particular, the

respondent noted that at the very latest, Tillman’s conviction became final on

September 27, 2002 (this date, 100 days after judgment of conviction and

sentence was entered, gave Tillman credit for the ten days provided under Kansas

law to appeal a conviction or sentence and ninety days within which a defendant

can seek certiorari review from the Supreme Court). 2 The district court agreed

Tillman’s § 2254 petition was untimely under the provisions of § 2244(d),

      1
        As noted by the district court, under the unique facts of this case (a guilty
plea equivalent and a sentence within the presumptive range), Tillman was not
entitled under state law to bring a direct appeal of his conviction or sentence.
      2
       As noted by the district court, a substantial argument can be made that
Tillman’s sentence actually became final on the date his sentence was announced,
June 19, 2002, because Kansas does not provide for a direct appeal in the
circumstances of Tillman’s case and the Supreme Court rules do not appear to
provide for certiorari review from decisions of state trial courts. It is unnecessary
to resolve this question, however, because even giving Tillman the benefit of
these extra time periods, his § 2254 petition is still untimely.

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specifically noting Tillman had never responded in his reply to the respondent’s

contention that the petition was untimely. Accordingly, the district court

dismissed Tillman’s § 2254 petition as untimely.

      To be entitled to a COA, Tillman must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Tillman has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Tillman need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having reviewed Tillman’s application for a COA and appellate filings, the

district court’s Order, and the entire record before this court pursuant to the

framework set out by the Supreme Court in Miller-El, this court concludes

Tillman is not entitled to a COA. The district court’s resolution of Tillman’s

§ 2254 petition on limitation grounds is not reasonably subject to debate and the

issues Tillman seeks to raise on appeal are not adequate to deserve further

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proceedings. In particular, we note that Tillman does not address, either in his

application for a COA or in his brief on appeal, the timeliness of his petition.

Accordingly, for those reasons set out in both the district court’s Order, this court

DENIES Tillman’s request for a COA and DISMISSES this appeal.


                                                ENTERED FOR THE COURT




                                                Elisabeth A. Shumaker, Clerk




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