F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 1 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
KEVIN WILSON,
Petitioner-Appellant,
v. No. 04-3300
RAY ROBERTS, Warden, El Dorado (D.C. No. 04-CV-3185-SAC)
Correctional Facility, Kansas Department (D. Kansas)
of Corrections; PHILL KLINE, Attorney
General of Kansas,
Respondents-Appellees.
ORDER*
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
Kevin Wilson, a state prisoner appearing pro se, seeks a certificate of appealability
(COA) to appeal the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as
time barred. We deny the request for a COA and dismiss the appeal.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). A COA can issue only “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court's
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
After careful review of all of the filings and the record on appeal, we conclude the
requirements for issuance of a COA have not been met.
On June 22, 1990, Wilson was convicted of one count of rape and one count of
aggravated burglary. His convictions were affirmed on direct appeal. See State v.
Wilson, 817 P.2d 1136 (Kan. App. 1991) (unpublished). On February 13, 1997, Wilson
filed an action for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1507 in state
district court, which was denied on March 3, 1997. The Kansas Court of Appeals
affirmed the denial on January 29, 1999, and the Kansas Supreme Court denied review on
March 16, 1999. Wilson filed a second § 1507 action in state district court on August 17,
1999, which was denied on October 29, 1999. The Kansas Court of Appeals affirmed the
denial on February 20, 2004, and the Kansas Supreme Court denied review on May 25,
2004.
Wilson filed his § 2254 habeas petition on June 8, 2004, claiming (1) ineffective
assistance of appellate counsel on direct appeal, and (2) a Fourth Amendment search and
seizure violation. In dismissing the petition, the district court found that Wilson failed to
file his habeas petition in a timely manner and that there was no basis for equitable tolling
in the record.
Because Wilson’s state conviction became final prior to the effective date of the
2
Antiterrorism and Effective Death Penalty Act of 1996 (April 24, 1996), he had a one-
year grace period to April 23, 1997, to file a petition for federal habeas relief. See
Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998). The one-year grace period
was tolled from February 13, 1997, to March 16, 1999, while his first state § 1507 action
was pending, and from August 17, 1999, to May 25, 2004, while his second state § 1507
action was pending. 28 U.S.C. § 2244(d)(2). The district court found that Wilson
presented no argument concerning the periods between April 24, 1996, and February 13,
1997, or between March 16, 1999, and August 17, 1999, and that those periods, combined
with the period between May 25, 2004, and June 8, 2004, exceeded the one-year
limitation period.
Wilson has filed a document with this court entitled “New Evidence for Certificate
of Appealability,” arguing equitable tolling is justified because he was appointed five
different counsel, which was an “extraordinary circumstance” beyond his control. This
information, which Wilson describes as “new evidence,” was not presented to the district
court and cannot be considered by this court in the first instance. See Walker v. Mather,
959 F.2d 894, 896 (10th Cir. 1992). Further, a listing of counsel who previously had
represented Wilson is not new evidence, but rather was known or discoverable by Wilson
prior to the filing of his federal habeas action. See 28 U.S.C. § 2244(d)(1)(D). In
addition, the listing presented does not indicate when these counsel represented Wilson or
how that fact should result in equitable tolling of the one-year filing period. See Gibson
3
v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (stating equitable tolling permitted only in
rare and exceptional circumstances).
We DENY the request for a COA and DISMISS the appeal for substantially the
same reasons as stated in the district court’s order filed August 3, 2004.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
4