F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 3, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES JEFFERY CAMPBELL,
Petitioner-Appellant, No. 05-3076
v. (D. of Kan.)
RAY ROBERTS; ATTORNEY (D.C. No. 04-CV-3057-SAC)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Petitioner-Appellant Charles Jeffery Campbell, a state prisoner appearing
pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c),
allowing him to appeal the order of the United States District Court for the
District of Kansas denying his petition for a writ of habeas corpus filed pursuant
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
to 28 U.S.C. § 2254 as untimely. See 28 U.S.C. § 2244(d). Because we
determine Campbell has not established “jurists of reason could conclude that the
District Court’s dismissal on procedural grounds was debatable or incorrect,”
Slack v. McDaniel , 529 U.S. 473, 485 (2000), we deny a COA and dismiss the
appeal.
I. Background
On June 13, 1995, a Kansas state court sentenced Campbell to a term of
imprisonment stemming from his convictions for robbery, theft, forgery and
burglary. The Kansas Court of Appeals affirmed on October 4, 1996 and
Campbell did not seek further review on direct appeal. Campbell’s convictions
therefore became final in November 1996 when his ability to directly appeal to
the Kansas Supreme Court expired, see Kan. Stat. Ann. § 20-3018(b), and, absent
tolling, his opportunity to seek federal habeas review concluded in November
1997, see 28 U.S.C. § 2244(d).
Campbell first sought post-conviction relief in April 2000 in state district
court. The court denied relief on April 25, 2000 and Campbell did not seek
review of that determination in the state appellate courts. Campbell then filed
another motion seeking state post-conviction relief in August 2002. The state
district court denied relief on August 30, 2002 and the Kansas Supreme Court
affirmed the denial on October 31, 2003.
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In February 2004, Campbell filed a petition for a writ of habeas corpus
pursuant to § 2254 in federal district court. In the petition, Campbell alleged the
use of his prior juvenile adjudications in calculating his criminal history for
sentencing purposes following his June 1995 convictions violated due process.
The district court did not reach the merits of the due process claim. Instead, the
court issued an order on June 29, 2004 finding that Campbell did not file his
§ 2254 petition within the one-year limitations period dictated by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.
§ 2244(d), and requiring him to show cause as to why the petition should not be
dismissed as time barred.
On January 23, 2005, the district court dismissed the petition as time
barred, concluding that the § 2244(d) limitations period should not be equitably
tolled because Campbell failed to diligently pursue his claims, and also denying
Campbell’s motion for a stay to allow him to return to state court to establish
cause for his late federal filing. As evidence that Campbell had not diligently
pursued his claims, the court cited his failure to seek appellate review of the
denial of his first state post-conviction motion and the more than two-year period
between that denial and his filing of a second state post-conviction motion. The
court also rejected Campbell’s claim that ineffective assistance of appellate
counsel on direct appeal warranted equitable tolling. Finally, the court denied
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Campbell’s request for a stay because the record showed he had not diligently
pursued his claims.
II. Discussion
To warrant a COA where the district court dismissed his § 2254 petition
on procedural grounds, Campbell must establish “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 , 529 U.S. at 484.
Because Campbell has not shown it is debatable whether the district court
properly denied his equitable tolling claim, we need not reach the due process
issue. See id. at 485.
The § 2244(d) limitations period is subject to equitable tolling. See Miller
v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). However, to be entitled to
equitable tolling a petitioner must have diligently pursued his claims. See
Woodward v. Williams, 263 F.3d 1135, 1142–43 (10th Cir. 2001); Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000); Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000). Campbell argues he is entitled to equitable tolling
because (1) his appellate counsel on direct appeal failed to seek review in the
Kansas Supreme Court and did not apprise him of that fact, and (2) he had
inadequate access to legal materials while incarcerated.
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These arguments do not excuse Campbell’s lengthy delay in seeking
federal relief. As determined by the district court, appellate counsel’s alleged
failure to keep Campbell informed of the status of his direct appeal did not
prevent him from either checking the status of his appeal himself or from seeking
federal review in a timely manner. This same conclusion explains why the
district court properly did not stay this action to allow Campbell to return to state
court to pursue his ineffectiveness of appellate counsel assertion. Furthermore,
Campbell’s conclusory claim as to inadequate access to legal materials is
insufficient to account for the approximate five-year period, even excluding the
time in which his state post-conviction motions were pending, between when his
convictions became final and when he sought federal review. See Marsh, 223
F.3d at 1220 (“ignorance of the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing”). Accordingly, this case does not
present one of those “rare and exceptional circumstances” in which the untimely
filing of a federal habeas petition should be equitably excused. Gibson, 232 F.3d
at 808.
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III. Conclusion
Campbell’s application for a COA is denied and the appeal is dismissed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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