Whitten v. Williams ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 15, 2019
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Elisabeth A. Shumaker
Clerk of Court
CHARLES WHITTEN,
Petitioner - Appellant,
v. No. 19-1289
(D.C. No. 1:19-CV-00721-LTB-GPG)
DEAN WILLIAMS; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before McHUGH, KELLY, and MORITZ, Circuit Judges.
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Petitioner-Appellant Charles Whitten, a state inmate appearing pro se, seeks a
certificate of appealability (COA) allowing him to appeal from the district court’s
denial of his 28 U.S.C. § 2254 application as time-barred and not subject to equitable
tolling. Whitten v. Williams, No. 19-cv-00721-LTB-GPG (July 26, 2019). Because
the district court’s procedural ruling is not reasonably debatable, we deny a COA and
dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In 2012, Mr. Whitten was convicted of two counts of witness intimidation and
four counts of witness tampering in Colorado state court. Mr. Whitten’s conviction
was affirmed on direct appeal and the Colorado Supreme Court denied his petition
for certiorari on April 20, 2015. His conviction became final on July 20, 2015.
Thereafter, Mr. Whitten sought state post-conviction relief. The assigned magistrate
judge determined that the one-year limitation period, 28 U.S.C. § 2244(d), for Mr.
Whitten to file this action expired on September 26, 2018. Mr. Whitten did not file
until March 11, 2019.
To obtain a COA, Mr. Whitten must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court
denies a § 2254 petition on procedural grounds, the movant must demonstrate “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.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Mr. Whitten argues that his appellate counsel told him
that he had one year from the denial of state post-conviction relief to file his federal
habeas petition and that his constitutional claims are reasonably debatable. The
district court’s conclusion that Mr. Whitten’s equitable tolling claim did not present
extraordinary circumstances and that he had not demonstrated actual innocence are
not reasonably debatable. See Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir.
2011); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
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We DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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