                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     May 16, 2018
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



CARL DEAN LEEPER,

              Petitioner - Appellant,
                                                         No. 17-3257
v.
                                                (D.C. No. 5:17-CV-03157-SAC)
                                                           (D. Kan.)
WARDEN SAM CLINE,

              Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BACHARACH, MURPHY, and O’BRIEN, Circuit Judges.


      This matter is before the court on Carl Dean Leeper’s pro se request for a

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

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken

from a final order denying habeas corpus relief unless the petitioner first obtains a

COA); id. § 2244(d) (setting out a one-year statute of limitations as to a habeas

corpus petition). Because Leeper 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.
      Following a jury trial in Kansas state court, Leeper was convicted of one

count of aggravated robbery. His conviction was affirmed on direct appeal. State

v. Leeper, No. 93,599, 2006 WL 1520536, at *1 (Kan. Ct. App. June 2, 2006).

Both of Leeper’s efforts to obtain state post-conviction relief were unsuccessful.

Leeper v. State, No. 108,721, 2013 WL 4778160, at *5 (Kan. Ct. App. Sept. 6,

2013); Leeper v. State, No. 101,477, 2010 WL 3488666, at *7 (Kan. Ct. App.

Aug. 27, 2010). Leeper then filed the instant, untimely, habeas petition on

September 6, 2017. In response to an order to show cause on the part of the

district court, Leeper recognized his petition was untimely, but asserted he was

entitled to have the district court disregard the limitations period set out in

§ 2244(d) because he was actually innocent. See McQuiggin v. Perkins, 133 S.

Ct. 1924, 1928 (2013) (“[A]ctual innocence, if proved, serves as a gateway

through which a petitioner may pass whether the impediment is a procedural bar

. . . or expiration of the statute of limitations.”). In support of his claim of actual

innocence, Leeper relied on an alleged videotape of the incident. 1

      1
        To be clear, Leeper has not included a copy of said videotape in his habeas
filings and does not point to anything on the alleged videotape as demonstrating it
was not him, but some other person, that committed the robbery. Instead, he
notes there were references to the possible existence of a videotape of the incident
during trial and asserts that if the videotape does exist, the prosecution’s failure
to adduce it at trial demonstrates he did not commit the crime. Even setting aside
the timeliness concerns identified by the district court as discussed above, the
entirely speculative argument advanced by Leeper (a videotape must exist because
there have been some limited discussions regarding its existence and, given that it
was not introduced at trial, it must show he did not commit the crime) does not
                                                                         (continued...)

                                          -2-
      The district court recognized that actual innocence could serve as a gateway

past the § 2244(d) limitations period. It noted, however, that a time-barred

petitioner asserting a claim of actual innocence must “support his allegations of

constitutional error with new reliable evidence—whether it is exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324

(1995). The district court concluded the videotape evidence relied on by Leeper

could not satisfy that standard because it was not new. Instead, that evidence was

discussed by the Kansas Court of Appeals in both decisions denying Leeper post-

conviction relief. Thus, the district court concluded Leeper’s § 2254 habeas

petition was time-barred.

      The granting of a COA is a jurisdictional prerequisite to Leeper’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336


      1
        (...continued)
satisfy the rigorous requirements of the actual innocence exception to the statute
of limitations. Indeed, based on the record before this court and the relevant
Kansas state court decisions, it is not at all clear a videotape of the incident
actually exists. House v. Bell, 547 U.S. 518, 538 (2006) (holding that to prevail
under the actual innocence standard, the petitioner must “demonstrate that more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt”); Frost v. Pryor, 749 F.3d 1212, 1232 (10th
Cir. 2014) (“Simply maintaining one’s innocence, or even casting some doubt on
witness credibility, does not necessarily satisfy this standard.”). Instead, it is
possible the victim of the robbery simply misspoke when referencing a videotape
and was, in reality, referring to a preliminary photo array. The potential
suggestiveness of that preliminary array was litigated extensively by Leeper in
state court.

                                         -3-
(2003). To be entitled to a COA, Leeper 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 “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.” Id. (quotations omitted). When a district court dismisses a

§ 2254 petition on procedural grounds, a petitioner is entitled to a COA only if he

shows both 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. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In

evaluating whether Leeper has satisfied his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Leeper

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 undertaken a review of Leeper’s 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, we conclude Leeper is not entitled to a

COA. The district court’s resolution of his petition is not reasonably subject to

debate. Accordingly, this court DENIES Leeper’s request for a COA and

                                         -4-
DISMISSES this appeal. His request to proceed on appeal in forma pauperis is

GRANTED.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




                                     -5-
