Morton vs. Roberts, No. 06-3333 (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 February 15, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court HERBERT E. M ORTON, JR., Petitioner-A ppellant, No. 06-3333 v. D. Kansas RAY ROBERTS, W arden, El Dorado Correctional Facility; PHILL KLINE, Attorney General of Kansas, (D.C. No. 06-CV-3031-SAC) Respondents-Appellees. OR DER Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges. This matter is before the court on Herbert E. M orton s request for a certificate of appealability ( COA ). M orton seeks a COA so he can appeal the district court s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that 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 unless the petitioner first obtains a COA). Because M orton 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. M orton was convicted in Kansas state court on charges of aggravated kidnaping, aggravated battery, and domestic battery. On direct appeal, the Kansas Court of A ppeals affirmed the aggravated kidnaping and domestic battery convictions, reversed the aggravated battery conviction on the ground the trial court erred in failing to give a lesser-included-offense instruction, and remanded for further proceedings in the district court. The Kansas Supreme Court denied review. Thereafter, M orton filed a M otion to Correct Illegal Sentence in the trial court. In that motion, M orton asserted that in setting aside the aggravated battery conviction, the Kansas Court of Appeals had eliminated the only conduct that could have supported the bodily harm element of the aggravated kidnaping conviction. Thus, according to M orton, the trial court was obligated to set aside his aggravated kidnaping conviction. Relying on the misdemeanor domestic battery conviction, the trial court denied M orton s motion. On appeal, the Kansas Court of A ppeals concluded the trial court had erred in relying on M orton s domestic battery conviction to support the bodily harm element of the aggravated kidnaping conviction. The Kansas Court of Appeals nevertheless affirmed the denial of M orton s motion, concluding the jury was properly instructed on the elements of aggravated kidnaping and that there was ample independent evidence at trial to support the jury s finding of bodily harm. The K ansas Supreme Court denied review . -2- M orton then filed the instant § 2254 habeas corpus petition. In response, the district court issued a lengthy and comprehensive memorandum and order directing M orton to show cause why his § 2254 petition should not be dismissed as untimely under the provisions of 28 U.S.C. § 2244(d)(1). W hen M orton failed to offer a substantive response to the district court s calculations as to the running of the statute of limitations, the district court dismissed M orton s petition because, inter alia, it was untimely. A COA will issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To satisfy this standard, M orton must show 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. Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). That is, M orton must show the district court s resolution of his petition was either debatable or wrong. Id. Because M orton s petition was dismissed on procedural grounds, he must make both a substantial showing of the denial of a constitutional right and also show jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling. Id. On appeal, M orton does not even address the district court s conclusion that his § 2254 habeas petition is barred by the statute of limitations set out in § 2244(d)(1). Accordingly, he has completely failed to carry his burden of -3- demonstrating the district court s procedural ruling is reasonably subject to debate. M orton s request for a COA is DENIED and his appeal is hereby DISM ISSED. Entered for the Court Elisabeth A . Shumaker, Clerk By: Deputy Clerk -4-
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