                                                                        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

 ARTHUR J. CAENEN,

             Petitioner-Appellant,                      No. 04-3486
       v.                                               (D. Kansas)
 KAREN ROHLING, Warden,                         (D.C. No. 04-CV-3290-SAC)

             Respondent-Appellee.




                                     ORDER


Before EBEL, MCKAY, and HENRY, Circuit Judges


      Arthur J. Caenen, a state prisoner in the custody of the Kansas Department

of Corrections proceeding pro se, seeks a certificate of appealability (COA) to

appeal the district court’s decision dismissing as untimely his 28 U.S.C. § 2254

petition for a writ of habeas corpus. For the reasons set forth below, we deny Mr.

Caenen’s application for a COA and dismiss this matter.

                               I. BACKGROUND

      In March 1998, the state charged Mr. Caenen in the District Court of

Sedwick County, Kansas with first-degree murder in violation of Kan. Stat. Ann.

§ 21-3401(a). The evidence presented at the November 1998 trial revealed that

Mr. Caenen had driven a passenger car that struck and killed a pedestrian. He
argued to the jury that he lacked the intent necessary to commit first-degree

murder because he suffered from paranoid schizophrenia. The jury rejected Mr.

Caenen’s defense and convicted him of the murder charge. He received a

sentence of life imprisonment.

      Mr. Caenen appealed to the Kansas Supreme Court, which affirmed his

conviction and sentence on March 9, 2001. See State v. Caenen, 19 P.3d 142

(Kan. 2001). More than a year later, on May 23, 2002, Mr. Caenen filed a state

habeas corpus petition in the District Court for Sedgwick County, Kansas. On

September 20, 2002, the Sedgwick County Court denied Mr. Caenen’s habeas

petition. Mr. Caenen then appealed that decision to the Kansas Court of Appeals,

which affirmed the denial of his state court habeas petition on January 23, 2004.

See Caenen v. State, No. 89,973, 2004 WL 117337 (Kan. Ct. App. Jan 23, 2004).

Then, on March 30, 2004, the Kansas Supreme Court denied Mr. Caenen’s request

for review.

      Mr. Caenen filed the instant 28 U.S.C. § 2254 habeas corpus petition in the

federal district court on September 8, 2004. The district court dismissed the

petition as time-barred. The court reasoned that Mr. Caenen’s conviction became

final on June 7, 2001, when the ninety-day period (following the Kansas Supreme

Court’s affirmance of his conviction) for filing a petition for a writ of certiorari

in the United States Supreme Court expired. When Mr. Caenen filed his state


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habeas petition on May 23, 2002, approximately two weeks remained of the one-

year limitation period for filing a federal habeas corpus action pursuant to 28

U.S.C. § 2254(d). Yet, after the state court habeas corpus proceedings finally

concluded (with the denial of his request for review by the Kansas Supreme Court

on March 30, 2004), Mr. Caenen waited more than five months to file his federal

habeas proceeding—far more than the time remaining until the expiration of the

statute of limitations.

                                    II. DISCUSSION

      To obtain a COA, Mr. Caenen must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Caenen may make

this showing by demonstrating that “‘reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.’” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)). “[A] claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id.

      Here, the decision whether to grant a COA turns on the application of 28

U.S.C. § 2244(d)(1), which establishes a time period for filing federal habeas

corpus petitions. Under § 2244(d)(1), a habeas corpus petition must be filed

within one year of the latest of:



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             (A) the date on which the judgment became final by the
             conclusion of direct review or the expiration of the time
             for seeking such review;

             (B) the date on which the impediment to filing an
             application created by State action in violation of the
             Constitution or laws of the United States is removed, if the
             applicant was prevented from filing by such State action;

             (C) the date on which the constitutional right asserted was
             initially recognized by the Supreme Court, if the right has
             been newly recognized by the Supreme Court and made
             retroactively applicable to cases on collateral review; or

             (D) the date on which the factual predicate of the claim or
             claims presented could have been discovered through the
             exercise of due diligence.

28 U.S.C. § 2244(d)(1).

      In his application for a COA and his appellate brief, Mr. Caenen again

seeks to argue the merits of his conviction, contending that he lacked the intent

necessary to commit first-degree murder. However, Mr. Caenen does not dispute

the district court’s application of the one-year limitations period.

      Upon review of the record, we agree with the district court for substantially

the same reasons set forth in its order that Mr. Caenen’s federal habeas petition is

time-barred. We note that, in certain “rare and exceptional circumstances,” §

2244(d)(1)’s one-year statute of limitations is subject to equitable tolling. York

v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). For example, “[e]quitable tolling

would be appropriate . . . when a prisoner is actually innocent” or “when an



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adversary’s conduct—or other uncontrollable circumstances—prevents a prisoner

from timely filing.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

However, in neither the federal district court proceedings nor in his submissions

to this court has Mr. Caenen presented arguments supporting the application of

equitable tolling.

                               III. CONCLUSION

      Accordingly, we DENY Mr. Caenen’s application for a COA and DISMISS

this matter.



                                              Entered for the Court,



                                              Robert H. Henry
                                              United States Circuit Judge




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