Pursley v. Estep , 216 F. App'x 733 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
February 8, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CARL W ILLIA M PURSLEY, JR.,
Petitioner – Appellant,
v. No. 06-1496
(D.C. No. 05-CV-1767-PSF-M EH )
AL ESTEP, W arden, LCF; (D . Colo.)
A TTO RN EY G EN ER AL O F THE
STA TE OF C OLO RA D O ,
Respondents – Appellees.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Carl W . Pursley, Jr., a state prisoner proceeding pro se, requests a
certificate of appealability (“COA”) to appeal the district court’s dismissal of his
28 U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by
the district court, we D EN Y a COA and DISM ISS.
Pursley was convicted in Colorado district court of attempted first degree
murder, second degree murder, and two habitual criminal counts. He was
*
This order and judgment is not binding precedent except under the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.
sentenced to a total of 90 years’ imprisonment. He exhausted his direct appeal
rights on October 30, 1995, when the Colorado Supreme Court denied him a writ
of certiorari. On August 20, 1998, Pursley filed a motion for state postconviction
relief, exhausting his state collateral remedies on September 6, 2005. Pursley
then filed a petition for federal habeas relief pursuant to 28 U.S.C. § 2254 on
September 13, 2005, in which he asserted eleven grounds for relief. The district
court dismissed his petition as time-barred and denied a CO A. Pursley now seeks
a COA from this court. 1
Section 2244(d)(1)(A) provides a one-year statute of limitations for § 2254
petitions from the date the judgment becomes final. Pursley concedes that he had
until April 24, 1997 to file his petition, or one year from the date of A EDPA’s
enactment. See United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).
Yet, because “[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation under
1
The Antiterrorism and Effective Death Penalty Act (“AEDPA ”) conditions
a petitioner’s right to appeal a district court’s denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Pursley to 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) (quotations omitted). Accordingly, Pursley may not appeal the district
court’s decision absent a grant of a COA by this court.
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this subsection,” § 2244(d)(2), the limitations period would be tolled during the
pendency of Pursley’s motion for state post-conviction relief.
Pursley’s central argument on appeal is that the district court erred in
finding that he did not file his motion for state post-conviction relief until August
20, 1998, well after the limitations period ended. He argues that we should look
not to the date the state motion was filed, but to his “M otion for Appointment of
Counsel for Post-Conviction Proceedings Pursuant to Colo.R.Crim.P.35(c),” dated
June 13, 1996, and subsequent motions seeking appointment of counsel, for
tolling purposes. Those motions were not part of the record before the district
court; however, Pursley has now moved to supplement the record on appeal.
Having reviewed the motions, we see no reason to depart from the
judgment of the district court that Pursley’s motions for appointment of counsel
did not “state adequate factual or legal grounds for relief,” as required for tolling
under Colo. R. Crim. P. 35(c)(3)(iv), and thus did not toll the statute of
limitations. See Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006) (holding
that a motion for state post-conviction relief is “properly filed” only if it satisfies
the state’s procedural requirements). As such, this case is readily distinguishable
from our decision in Habteselassie v. Novak, in which we held that a motion for
relief pursuant to Colorado Rule of Criminal Procedure 35 tolled the statute of
limitations if it requested appointment of new counsel, sought post-conviction
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relief, and stated adequate grounds for relief. 209 F.3d 1208, 1213 (10th Cir.
2000).
In the alternative, Pursley argues that he should be excepted from
AEDPA ’s statute of limitations on grounds of actual innocence. See Schlup v.
Delo, 513 U.S. 298, 327 (1995). Because he has presented no new evidence that
makes it “more likely than not that no reasonable juror” would have convicted
him, we decline to do so. Id.For the reasons set forth above, Pursley’s motions to proceed in forma
pauperis and to supplement the record on appeal are GR ANTED , his request for a
COA is DENIED, and his appeal is DISM ISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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