F I L E D
United States Court of Appeals
Tenth Circuit
August 9, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
M ERRILL ANDREW S,
Petitioner-Appellant, No. 06-3108
v. (D.C. No. 05-CV-3480-SAC)
STATE OF KAN SAS; PHIL KLINE, (D . Kan.)
Attorney General of Kansas,
Respondents-Appellees.
OR DER
Before K ELLY, M cK AY, and LUCERO, Circuit Judges.
In 1978, Appellant was convicted in Kansas state court of felony murder.
At trial, the state argued that Appellant, along with two unknown persons, killed a
woman in the course of robbing her home. Appellant was paroled in 1999 but is
now incarcerated in a federal penitentiary for robbing a credit union in 2002. The
Kansas Department of Corrections issued a parole violation warrant for Appellant
following the credit union robbery. Appellant has consistently maintained his
innocence in the 1978 case, and, in this 28 U.S.C. § 2254 petition, he challenges
the state conviction.
To overcome the one-year statute of limitations on § 2254 petitions,
Appellant argues that he recently discovered evidence supporting his claim of
actual innocence. The habeas statutory scheme allows for late-filed petitions if
the petition is filed one year from “the date on which the factual predicate of the
claim or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). The burden to demonstrate due diligence
that w ould toll the statute of limitations is on the Appellant. See Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001)
(“[Equitable tolling] is only available w hen an inmate diligently pursues his
claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.”).
In 2002, Appellant discovered that an individual claimed to have heard
another person admit to committing the murder for which Appellant was
convicted. Appellant also discovered that the person who allegedly confessed had
a brother who owned a car similar to the car seen outside the 1978 victim’s home
during the robbery. In February 2003, Appellant filed for relief from the 1978
conviction in Kansas state court based on the new evidence, which was denied.
In dismissing Appellant’s § 2254 petition, the district court found that
Appellant failed to demonstrate any extraordinary circumstances that prevented
him from making a timely filing. Order, 3 (D. Kan. M ar. 10, 2006). In addition,
the district court noted that, when making a claim of actual innocence, Appellant
“must show that ‘it is more likely than not that no reasonable juror would have
found [Appellant] guilty beyond a reasonable doubt.’” Id. at 4 (quoting Schlup v.
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Delo, 513 U.S. 298, 327 (1995)). The district court went on to note that even if
Appellant established the truth of the alleged confession and the ownership of the
similar car, these facts are not inconsistent with the government’s theory of the
case that Appellant and two others committed the crime. Id. (citing Andrews v.
State, No. 92,024, 2005 W L 823913, at *2 (Kan. Ct. App. Apr. 8, 2005)). The
district court did not grant Appellant a certificate of appealability (“COA”).
To obtain a COA, Appellant must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Appellant
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. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
W e have carefully reviewed Appellant’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Appellant’s filing raises an issue which meets our standard for the grant of a
COA. For substantially the same reasons set forth by the district court in its
M arch 10, 2006, order, we cannot say “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
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a different manner.” Id. W e, therefore, DENY Petitioner’s request for a COA
and DISM ISS the appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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