F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 17, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARLON D. JACKSON,
Petitioner-Appellant. No. 05-3037
v. (04-CV-3331-SAC)
RAY ROBERTS, Warden, El Dorado (D. Kansas)
Correctional Facility, and
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Petitioner’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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner was convicted
by jury of first-degree felony-murder. Petitioner’s subsequent appeal to the
Supreme Court of Kansas was denied and his conviction was upheld. Petitioner
then filed a § 2254 petition for habeas corpus relief with the United States
District Court for the District of Kansas. In that petition, Petitioner alleged
constitutional error in his state court conviction.
The district court dismissed the petition as time barred under AEDPA’s
one-year statute of limitations. The district court also declined to grant Petitioner
a certificate of appealability. Petitioner has renewed his request for a certificate
of appealability with this court. The issues he raises on appeal are identical to
those brought before the district court.
In order for this court to grant a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “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. McDaniel, 529 U.S. 473,
484 (2000) (internal citations and quotations omitted). When a habeas petition is
denied by the district court for procedural reasons, as is the case here, Petitioner
must clear the added hurdle of showing “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s filing raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
-2-
district court in its December 17, 2004 Order, we cannot say that it is “debatable
whether the district court was correct in its procedural ruling.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-