Tucker v. Bruce , 53 F. App'x 4 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 27 2002
TENTH CIRCUIT PATRICK FISHER
Clerk
BILL E. TUCKER, JR.,
Petitioner - Appellant,
No. 02-3061
v.
D.C. No. 01-CV-3109
(D. Kansas)
L. E. BRUCE; ATTORNEY
GENERAL OF KANSAS,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.
Bill E. Tucker was convicted in 1975 of three counts of unlawful
possession of a firearm after a felony conviction. He did not file a direct appeal.
In May 1997, he filed a state post-conviction action, seeking reversal of these
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
three convictions on the basis of the intervening reversal of an armed robbery
conviction, and challenging his sentencing enhancement under the Habitual
Criminal Act. The state district court denied relief, the state appeals court
affirmed, and the state supreme court denied Mr. Tucker’s petition for review.
Mr. Tucker then filed two § 2254 petitions in federal district court. These actions
were consolidated and subsequently denied as untimely under AEDPA. Mr.
Tucker filed a motion for reconsideration or, in the alternative, a motion to
proceed in forma pauperis on appeal. The district court denied reconsideration
and granted the motion to proceed in forma pauperis. For the reasons set out
below, we dismiss the appeal.
Because Mr. Tucker’s convictions came before AEDPA, he had a one year
grace period, from April 24, 1996 to April 24 1997, in which to file any petition
for relief. This time period is tolled during the pendency of any “properly filed
application for state post-conviction or other collateral review.” 28 U.S.C.
2254(d)(2). However, Mr. Tucker had no applications for review of the firearm
convictions pending during that one year period, and did not file for relief from
the firearm possession convictions until May 26, 1997. It was only the
convictions for armed aggravated robbery that were the subject of pending
motions during the one year grace period. Because he did not challenge the
firearm possession convictions until after April 24, 1997, the district court was
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correct in dismissing the matter as time-barred.
When a habeas petitioner seeks to initiate an appeal of the dismissal of a
habeas petition after April 24, 1996, the right to appeal is governed by the
certificate of appealability requirements in 28 U.S.C. § 2253(c). See Slack v.
McDaniel, 529 U.S. 473, 478 (2000). When the district court denies a habeas
petition on procedural grounds without reaching the underlying constitutional
claim, a certificate of appealability should issue if the prisoner shows 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. For the
reasons set forth above, Mr. Tucker has not shown that the district court’s
procedural ruling raises a debatable question.
Accordingly, we DENY Mr. Tucker’s application for a certificate of
appealability and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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