Wyo.) (D.C. No. 2:16-CV-00210-NDF)
KELLY, MURPHY, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy Circuit Judge
matter is before the court on Fane R. Sellers's pro se
requests for a certificate of appealability
("COA") and to proceed on appeal in forma
pauperis. Sellers seeks a COA so he can appeal the district
court's dismissal, on timeliness grounds, of his 28
U.S.C. § 2254 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
court" unless the petitioner first obtains a COA);
id. § 2244(d)(1)(A) (setting out a one-year
statute of limitations on § 2254 petitions running from
the date on which the conviction became final). We grant
Sellers's request to proceed on appeal in forma pauperis.
Nevertheless, because he has not "made a substantial
showing of the denial of a constitutional right, "
id. § 2253(c)(2), this court denies
Sellers's request for a COA and dismisses this appeal.
2008, Sellers pleaded guilty in Wyoming state court to three
counts of second degree sexual abuse of a minor. The state
court entered judgment on October 10, 2008, sentencing
Sellers to three consecutive five-to-ten-year terms of
imprisonment. Almost a year later, on September 23, 2009,
Sellers filed a motion for a sentence reduction pursuant to
Rule 35 of the Wyoming Rules of Criminal Procedure. The state
court granted Sellers's motion on October 27, 2009,
thereby reducing the term of imprisonment for Count III to
probation as long as Sellers completes his consecutive
sentences for Counts I and II. Then, on June 3, 2016, Sellers
sought habeas relief in the Wyoming Supreme Court. That court
denied Sellers's petition on June 28, 2016.
filed the instant § 2254 habeas petition in federal
district court on July 25, 2016. The district court concluded
Sellers's petition was untimely and that, even accounting
for statutory tolling pursuant to 28 U.S.C. §
2244(d)(2), the limitations period expired on December 15,
2009. In addition, the district court concluded Sellers was
not entitled to equitable tolling because his alleged excuse
for not filing a timely petition, ignorance of the law, did
not excuse the delay. See Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000).
granting of a COA is a jurisdictional prerequisite to
Sellers'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, Sellers 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 whether the
district court's procedural ruling was correct. Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating
whether Sellers 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 Sellers 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. As a further overlay on this
standard, we review for abuse of discretion the district
court's decision that
Sellers is not entitled to have the limitations period in
§ 2244(d) equitably tolled. See Burger v.
Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).
undertaken a review of Sellers'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 Sellers
is not entitled to a COA. The district court's resolution
of Sellers's § 2254 motion is not reasonably subject
to debate and the issues he seeks to raise on appeal are not
adequate to deserve further proceedings. In particular, the
district court did not abuse its discretion in determining
Sellers failed to demonstrate the type of extraordinary
circumstances that would justify equitably tolling the
limitations period set out in § 2244(d). Accordingly,
this court DENIES Sellers's request for a COA and
DISMISSES this appeal.
None of Sellers's appellate filings
are specifically designated as a request for a COA.
Nevertheless, this court treats his appellate filings as
containing an implicit request for ...