Morton v. Roberts , 216 F. App'x 807 ( 2007 )

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 (D.C. No. 06-CV-3031-SAC)
Correctional Facility; PHILL KLINE,
Attorney General of Kansas,
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 .
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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
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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
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