Myers vs. Clark, No. 06-4034 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 14, 2007 TENTH CIRCUIT __________________________ Elisabeth A. Shumaker Clerk of Court CA LV IN SHANE M YERS, Petitioner - A ppellant, v. LO W E LL H . C LA RK , No. 06-4034 (D. Utah) (D.Ct. No. 2:05-CV-367-TC) Respondents - Appellees. ____________________________ OR DER DENY ING CERTIFICATE O F APPEALABILITY A ND DISM ISSIN G A PPLIC ATIO N Before H E N RY, BR ISC OE, and O BRIEN, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Calvin M yers, a state prisoner proceeding pro se 1 and in form a pauperis, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. The district court dismissed the petition as untimely. M yers then requested a certificate of 1 Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). Myers motion to proceed in forma pauperis on appeal was granted by the district court. appealability (COA). Because the district court did not rule on the request w ithin thirty days, we deem it denied. See 10th Cir. R. 22.1(C). M yers renews his application for a COA with this Court. For the same reasons set forth by the district court, we DENY a COA and dismiss his application. Background The State of U tah charged M yers w ith two counts of aggravated murder, both capital offenses, alleging M yers had killed his girlfriend and her unborn child. M yers entered an unconditional guilty plea to one count of aggravated murder and the trial court dismissed the second count in accordance with a plea agreement. On February 6, 1996, the trial court sentenced M yers to life imprisonment with the possibility of parole. M yers did not file a direct appeal. In July 2000, M yers filed a petition for post-conviction relief in Utah state court. The petition was dismissed on the basis of state procedural bars and the court s finding M yers trial counsel was not ineffective. M yers appealed this decision and the Utah Supreme Court affirmed the dismissal. M yers v. State of Utah, 94 P.3d 211 (Utah 2004). M yers then filed a § 2254 petition on M ay 23, 2005, asserting, inter alia, his claims were not procedurally barred. The district court dismissed the petition, concluding M yers claims were untimely under the Antiterrorism and Effective D eath Penalty Act of 1996 (AEDPA). -2- Certificate of Appealability A COA is a jurisdictional pre-requisite to our review. M iller-El v. Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if M yers makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that reasonable jurists could debate whether . . . the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Insofar as the district court dismissed his habeas petition on procedural grounds, M yers must demonstrate both that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. W here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. Id. W e review the district court s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). Because M yers conviction became final before the effective date of AEDPA , April 1996, M yers was required to file his §2254 petition by April 1997, -3- unless the limitation period was tolled. Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000) (one-year statute of limitations does not begin to run until AEDPA's effective date, April 24, 1996, for convictions becoming final before that date). The district court found M yers filed his § 2254 petition more than one year after the effective date of AEDPA and there was no justification for equitable tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). M yers argues he filed within one year of the Utah court s resolution of his state post-conviction claims and, therefore, his petition was timely filed. W hile a claim for state post-conviction relief will generally toll the limitations period, it will not toll a limitation period which has already expired. Fisher, 262 F.3d at 1142-43. M yers filed his post-conviction claims in July 2000, after the 1997 AEDPA statute of limitations had already expired. M yers also fails to present sufficient grounds for the application of equitable tolling, a remedy applied only in rare and exceptional circumstances. Gibson, 232 F.3d at 808 (quotations omitted). Consequently, the district court s dismissal order is not reasonably debatable. Slack, 529 U.S. at 484. M yers has failed to make a sufficient show ing he is entitled to a COA. W e DENY a COA and dismiss the application. Entered by the C ourt: Terrence L. O Brien United States Circuit Judge -4-

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