                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 27, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



RONALD DEWAYNE CUMMINS,

             Petitioner - Appellant,
                                                        No. 09-6217
       v.                                             (W.D. Oklahoma)
                                                (D.C. No. 5:09-CV-00347-M)
JUSTIN JONES,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Proceeding pro se, Ronald DeWayne Cummins seeks a certificate of

appealability (“COA”) so he can appeal the district court’s dismissal of the

habeas application he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A) (providing no appeal may be taken from a final order disposing

of a § 2254 petition unless the petitioner first obtains a COA). In his application,

filed on March 31, 2009, Cummins raised four claims challenging the

constitutionality of his two 1987 convictions for first degree murder.

      In a well-reasoned Report and Recommendation, a federal magistrate judge

noted Cummins’s conviction became final prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Consequently,
Cummins had until April 24, 1997, to file his federal habeas petition. Hoggro v.

Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). The one-year period could not be

statutorily tolled while Cummins pursued state post-conviction relief because he

did not seek that relief until September 26, 2008, more than ten years after the

one-year period of limitation had expired. Fisher v. Gibson, 262 F.3d 1135,

1142-43 (10th Cir. 2001).

      Although Cummins argued the limitations period should be calculated

pursuant to 28 U.S.C. § 2244(d)(1)(B) or § 2244(d)(1)(D) because he was never

informed of his right to file an appeal, the uncontroverted record undermined his

arguments. A minute order filed on January 16, 1987, in the District Court of

Pottawatomie County, Oklahoma, reflects what happened at Cummins’s

sentencing proceeding. It states: “[Cummins] advised of his right to appeal and

that if he is financially unable to pay for the record the same will be furnished at

State expense. Defendant affirmatively waives his notice of appeal.”

      The Report and Recommendation also examined whether Cummins was

entitled to equitable tolling of the AEDPA limitations period but ultimately

recommended the § 2254 petition be denied as untimely. After considering

Cummins’s objections to the Report and Recommendation, the district court

adopted the magistrate judge’s recommendation and dismissed Cummins’s § 2254

petition.




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      To be entitled to a COA, Cummins 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); see also 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 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). In evaluating whether

Cummins 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 Cummins 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. (quotations

omitted).

      This court has reviewed Cummins’s appellate brief and application for

COA, the Report and Recommendation, the district court’s order, and the entire

record on appeal pursuant to the framework set out by the Supreme Court in

Miller-El and concludes Cummins is not entitled to a COA. Further, the record

                                          -3-
establishes Cummins has failed to demonstrate any circumstance that justifies

equitable tolling. Thus, it is clear the district court did not abuse its discretion

when it refused to equitably toll the one-year limitations period. See Burger v.

Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

      The district court’s resolution of Cummins’s habeas application is not

reasonably subject to debate and his claims are not adequate to deserve further

proceedings. Accordingly, Cummins has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2). This court denies Cummins’s request for a COA and dismisses this

appeal.

                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge




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