FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 30, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
NATHENIAL T. HURT,
Petitioner - Appellant, No. 09-3330
v. (D. Kansas)
DAVID MCKUNE, Warden, Lansing (D.C. No. 5:09-CV-03142-SAC)
Correctional Facility; STEPHEN N.
SIX, Kansas Attorney General,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Nathenial T. Hurt, a Kansas state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the denial of his application under
28 U.S.C. § 2254 for habeas relief. See id. § 2253(c) (requiring COA to appeal
denial of application). Because Mr. Hurt has failed to make a substantial showing
of the denial of a constitutional right, as required by 28 U.S.C. 2253(c)(2), we
deny his request for a COA and dismiss the appeal.
I. BACKGROUND
Mr. Hurt was convicted by a jury in Kansas state court of first-degree
murder and aggravated assault, and pleaded guilty to unlawful possession of a
firearm. On February 26, 2003, he was sentenced to consecutive sentences of life
imprisonment on the murder charge, 24 months on the aggravated assault charge,
and eight months on the firearm charge. He was eligible for parole on his life
sentence after 50 years (a “hard 50”) sentence.
Mr. Hurt appealed to the Kansas Supreme Court, which affirmed the
convictions and sentences on December 17, 2004. See State v. Hurt, 101 P.3d
1249 (Kan. 2004). In December 2005 he filed a petition for a writ of habeas
corpus in Kansas state district court; but the court denied the petition, the Kansas
Court of Appeals affirmed, and the Kansas Supreme Court denied review on July
2, 2008. On July 6, 2009, he filed his § 2254 application in the United States
District Court for the District of Kansas, asserting (1) that he was denied his Sixth
and Fourteenth Amendment right to a fair trial because of ineffective assistance
of counsel; (2) that prosecutorial misconduct during closing arguments deprived
him of a fair trial in violation of the Due Process Clause of the Fourteenth
Amendment; and (3) that the Kansas hard-50 sentencing provisions violated his
Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S.
466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
The district court rejected Mr. Hurt’s § 2254 application as time-barred. It
explained its calculation in an order requiring Mr. Hurt to show why his § 2254
application was not untimely. Because Mr. Hurt did not petition the United States
Supreme Court for a writ of certiorari, the one-year limitation period of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.
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§ 2244(d)(1)(A), began to run when his time to file such a petition expired on
March 17, 2005, which was 90 days after the Kansas Supreme Court affirmed his
conviction, see Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (“[T]he one-
year limitation period for filing a federal habeas petition does not begin to run
until . . . after the [90-day] time for filing a petition for certiorari with the
Supreme Court has passed.” (internal quotation marks omitted)); Sup. Ct. R. 13(1)
(providing a 90-day period during which a petition for a writ of certiorari may be
filed following entry of judgment by a state court of last resort). The limitations
period ran until Mr. Hurt filed his state petition for postconviction relief in
December 2005, 1 which tolled the running of the period until July 3, 2008, when
the Kansas Supreme Court denied review. See 28 U.S.C. § 2244(d)(2). The one-
year limitations period thus expired no later than November 2008, long before
Mr. Hurt filed his federal habeas petition in July 2009.
In response, Mr. Hurt did not challenge the calculation but argued that he
was entitled to equitable tolling because (1) his attorney “erroneously advised”
him about the deadline for his application, R., Vol. 1 at 80; (2) procedural
defaults do not apply to “substantive mental competency claims,” id. (internal
quotation marks omitted); and (3) the district court improperly acted sua sponte in
1
The specific date in December 2005 on which Mr. Hurt filed his petition
for postconviction relief in Kansas district court does not appear in the record.
We will assume, as did the district court, that he filed it on December 1, 2005.
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raising the issue of procedural default. The district court was not persuaded and
dismissed the § 2254 application as untimely.
In requesting a COA from this court, Mr. Hurt asserts (1) that he was
denied his Sixth and Fourteenth Amendment rights to a fair trial and to effective
assistance of counsel because (a) trial counsel failed to pursue a mens rea defense
and to challenge his competency to stand trial, (b) counsel failed to file a motion
to suppress the firearm discovered during an allegedly unlawful search, and (c)
counsel gave him incorrect information that led him to plead guilty to criminal
possession of a firearm; (2) that the trial court and prosecutor failed to perform
their own duties to investigate and present his mental-defect defense; (3) that the
state court unlawfully denied his state habeas petition in that it failed to construe
his pleadings liberally or to conduct an evidentiary hearing on the claims that he
raised; and (4) that he is entitled to equitable tolling of the limitations period
because (a) claims of substantive mental incompetency defeat a procedural bar,
(b) he had constitutionally ineffective assistance of counsel, and (c) his
postconviction counsel told him the incorrect deadline for submitting his habeas
claim to federal court.
II. DISCUSSION
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). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
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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. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. If the application was denied on procedural grounds,
the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show
“that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling.” Id. “Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.” Id.
Because the district court was clearly correct in ruling that Mr. Hurt’s
§ 2254 application was untimely, we need not address his arguments on the
merits. The only dispute regarding timeliness is whether Mr. Hurt was entitled to
equitable tolling. Although he states three grounds for tolling in his brief in this
court, we limit our discussion to the two of those grounds that were raised below:
(1) that his postconviction attorney told him the wrong deadline for filing his
habeas petition and (2) that his claim of substantive mental incompetence cannot
be procedurally barred. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir.
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2007) (ordinarily we will not consider an argument on appeal that was not raised
below).
As for Mr. Hurt’s first argument, he does not allege that his counsel
intentionally misled him, but rather that counsel “misquoted the deadline,” Aplt.
Br. at 28. There is no constitutional right to counsel at the habeas stage of a
proceeding, and equitable tolling is not appropriate for simple negligence by
habeas counsel. See Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007)
(“Habeas counsel’s negligence is not generally a basis for equitable
tolling . . . .”); cf. Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no
constitutional right to an attorney in state post-conviction proceedings.”). We can
also readily dispose of Mr. Hurt’s second argument. Although a defendant’s
mental incompetence could certainly be cause for failure to preserve a claim in
state-court proceedings, see Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir.
1997); Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985), he has not
asserted that his untimeliness resulted from such incompetence. Indeed, as the
district court noted, he has alleged “no facts other than his contested memory loss
as the basis for his claim of mental incompetency at the time of the offense, and
no facts whatsoever indicating he was mentally incompetent at trial.” Hurt v.
McKune, No. 09-03142-SAC, 2009 WL 3447246, at *2 (D. Kan. Oct. 21, 2009),
available at R., Vol. 1 at 101 (footnote omitted).
III. CONCLUSION
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No reasonable jurist could debate whether the district court’s dismissal of
Mr. Hurt’s application under 28 U.S.C. § 2254 was “debatable or wrong.” Slack,
529 U.S. at 484. Therefore we DENY the application for a COA and dismiss the
appeal. We also DENY Mr. Hurt’s motion to supplement the record.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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