                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 18, 2018
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



CLARENCE SHEDWOOD BRANCH,

             Petitioner - Appellant,
                                                        No. 17-4133
v.
                                              (D.C. No. 2:16-CV-00011-DAK)
                                                         (D. Utah)
SCOTT CROWTHER,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MATHESON, KELLY, and MURPHY, Circuit Judges.


      This matter is before the court on Clarence Shedwood Branch’s pro se

request for a certificate of appealability (“COA”). Branch 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 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” without first

obtaining a COA); id. § 2244(d)(1) (setting out a one-year statute of limitations

on § 2254 petitions running from the date on which the conviction became final).

Because Branch 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.

      Branch was charged in Utah state court in three separate cases between

September 7, 2004, and November 10, 2004. These three cases stemmed from

different incidents with different victims; all included violence or sexual assault.

On November 10, 2005, Branch pleaded guilty in a global plea deal for an overall

reduction in charges across the three cases. He pleaded guilty to one count of

aggravated assault, a third degree felony; one count of aggravated sexual assault,

a first degree felony; and one count of attempted rape, a second degree felony.

Branch did not move to withdraw his guilty pleas and, on December 22, 2005, he

was sentenced to zero to five years in the aggravated assault case, one to fifteen

years in the attempted rape case, and fifteen years to life in the aggravated sexual

assault case. The state trial court ordered that the sentence would run

consecutively. Branch never filed a direct appeal.

      Branch filed the instant § 2254 habeas petition on January 4, 2016. In

response to a motion to dismiss, the district court determined Branch’s petition

was untimely. In particular, the district court noted as follows: (1) judgment

entered when Branch was sentenced in state court on December 22, 2005; (2)

Branch’s conviction became final on January 21, 2006, when he declined to file a

direct appeal; (3) the one-year limitations period set out in § 2244(d)(1) expired

on January 21, 2007; and (4) Branch’s § 2254 petition was, thus, filed nine years

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too late. The district court concluded Branch was not entitled to statutory tolling

because Branch’s state-court petition for post-conviction relief was filed on

March 12, 2013, long after the limitations period had already expired. See Fisher

v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). Finally, the district court

concluded that Branch was not entitled to equitable tolling. In particular, the

district court noted that none of the various excuses advanced by Branch

overcame his gross failure to diligently pursue his federal habeas claims. As to

Branch’s claim of actual innocence, the district court noted that the evidence

Branch advanced in support of that claim was neither “new” nor plausible. See

Schlup v. Delo, 513 U.S. 298, 324-29 (1995).

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

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

336 (2003). To be entitled to a COA, he 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.” Miller-El, 537 U.S. at 336 (quotations omitted). When a

district court dismisses a § 2254 motion 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

                                         -3-
whether the district court’s procedural ruling was correct. Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). In evaluating whether Branch 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 Branch 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). As a further overlay on

this standard, we review for abuse of discretion the district court’s decision that

Branch is not entitled to have the limitations period set out in § 2244(d)(1)

equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

      Having undertaken a review of Branch’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 and Slack, we conclude Branch is not

entitled to a COA. The district court’s resolution of Branch’s § 2254 motion is

not deserving of further proceedings or subject to a different resolution on appeal.

We do, however, note that Branch’s assertion that application of the § 2244(d)(1)

limitations period to his habeas petition amounts to a suspension of the writ is

wholly frivolous given the weakness of his underlying merits claims and his lack

of diligence in seeking to vindicate his federal rights. See Miller v. Marr, 141

F.3d 976, 978 (10th Cir. 1998). Accordingly, this court DENIES Branch’s




                                         -4-
request for a COA and DISMISSES this appeal.

                                     ENTERED FOR THE COURT


                                     Michael R. Murphy
                                     Circuit Judge




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