Davidson v. McKune , 191 F. App'x 746 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M ICHA EL P. D A V ID SO N ,
Petitioner - A ppellant,
No. 06-3019
v. (D.C. No. 05-CV-3136-SAC)
(D . Kan.)
DAVID R. M cKUNE, W arden,
Lansing Correctional Facility;
A TTO RN EY G EN ER AL O F
KANSAS,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
M ichael P. Davidson, a state inmate proceeding pro se, seeks a certificate
of appealability (“COA”) to appeal from the district court’s denial of his petition
for a w rit of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court
dismissed the habeas action as time-barred under the one-year limitation period
set forth in 28 U.S.C. § 2244(d), and denied a motion for reconsideration. To
obtain a COA, M r. Davidson must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); M iller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotation omitted). W here a district court dismisses a
habeas petition on procedural grounds without addressing the merits, “a COA
should issue when the prisoner shows, at least, 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. M cDaniel, 529 U.S. 473, 484
(2000).
M r. Davidson was convicted of first-degree murder in state district court,
and his conviction was affirmed on appeal. State v. Davidson, 954 P.2d 702(Kan. M ar. 6, 1998). His conviction became final on June 4, 1998, 1 the last day
on which he could have filed a certiorari petition with the United States Supreme
Court. See 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 527-
28 (2003) (adding 90-day period in which defendant could seek certiorari).
Thereafter, M r. Davidson had one-year to file his federal habeas petition, but the
time period would be tolled by the time a properly filed state post-conviction
motion was pending. 28 U.S.C. § 2244(d)(1)(A), (d)(2). Thirty-five days elapsed
without such a motion, (June 5-30 and July1-9). On July 10, 1998, M r. Davidson
filed a Kan. Stat. Ann. § 60-1507 post-conviction motion, which ultimately ended
with a denial of review by the K ansas Supreme Court on M arch 31, 2004. M r.
1
The district court determined that the limitations period began to run “on
or before June 6, 1998.” It would begin to run on June 5, 1998. See United
States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (adopting Fed. R. Civ. P.
6(a) as the method of counting).
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Davidson filed his federal petition on M arch 18, 2005. The district court
concluded that the period between M arch 31, 2004 and M arch 18, 2005 period
had to be aggregated with the initial period in which a state post-conviction was
pending, and therefore, the federal petition was untimely.
On appeal, M r. Davidson first argues that he should have an additional 30
days from the denial of his state petition for review until the mandate became
final and, in the alternative, he is entitled to equitable tolling because he relied on
post-conviction counsel’s incorrect guidance as to when his federal habeas
petition had to be filed. Aplt. Br. at 12-16.
M r. Davidson relies upon Bunny v. M itchell, 262 F.3d 973, 974 (9th Cir.
2001) (per curiam), a case involving a California rule providing that a decision by
the state supreme court became final 30 days after filing. Pursuant to Kan. S. Ct.
R. 7.06, it does appear that M r. Davidson had another 20-day period in which he
could have filed a rehearing petition from the Kansas Supreme Court’s order
denying review, and we have held that such time is tolled under § 2244(d)(2).
See Serrano v. W illiams, 383 F.3d 1181, 1185 (10th Cir. 2004) (because New
M exico did not preclude the filing a rehearing petition to reconsider the denial of
certiorari, that time would be tolled even where petitioner did not so file); M ills
v. M cKune, 2006 W L 1755962, at *2 (10th Cir. June 28, 2006) (unpublished)
(applying Serrano to denial of review by Kansas Supreme Court); Thome v.
Roberts, 2006 W L 1017646, at *2-3 (10th Cir. Apr. 19, 2006) (unpublished)
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(same). However, even with an additional 20 days of tolling, M r. Davidson’s
petition is untimely, having been filed on the 366th day. 2
M r. Davidson also argues for equitable tolling based on a letter from post-
conviction counsel advising that he had one-year from the date the Kansas
Supreme Court denied review. Aplt. Br. at 12-13. W e have rejected attorney
miscalculation or mistake as to the limitations period as an “extraordinary
circumstance” justifying equitable tolling. See Steed v. Head, 219 F.3d 1298,
1300 (10th Cir. 2000). Nor does M r. Davidson have an ineffective assistance
claim entitling him to equitable tolling. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”); U nited States v. M artin, 408 F.3d 1089, 1093 (8th
Cir. 2005) (noting that ineffective assistance of counsel based on counsel’s
negligence or mistake has not been considered an extraordinary circumstance for
equitable tolling).
W e DENY a COA, and DISM ISS this appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
In addition to the 35 days previously mentioned, 330 days elapsed
between April 20, 2004 (the last day on which a motion for rehearing could have
been filed) and M arch 18, 2005 (the filing of M r. Davidson’s federal petition).
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