FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 1, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GREGORY LYNN GALES,
Petitioner-Appellant,
v. No. 08-3124
(Case No. 07-CV-03282-SAC)
SAM CLINE, Warden; STEVEN SIX, (D. Kan.)
Attorney General of the State of
Kansas,
Respondents-Appellees.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Petitioner, a state prisoner proceeding pro se, seeks to appeal the district
court’s dismissal of his § 2254 habeas petition as time barred.
In September 2001, Petitioner was convicted of murder and arson by a
Kansas jury. His conviction and sentence were affirmed on direct appeal, and
both the Kansas and United States Supreme Courts denied review. Petitioner then
filed his first federal § 2254 habeas petition. On September 30, 2004, the district
court dismissed the petition without prejudice for failure to exhaust, noting that
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the issues raised in the petition had not been raised on direct appeal and that
Petitioner had not sought state collateral review pursuant to Kan. Stat. Ann. § 60-
1507. The district court advised Petitioner that the one-year limitations period for
federal habeas review of his conviction began running on June 1, 2004, and that
his filing of this federal habeas action did not toll the running of the limitations
period. The court stated: “Accordingly, if petitioner elects to appeal the order
and judgment by this court entered this date herein, the one year limitation period
in 28 U.S.C. [§] 2244(d)(1) will continue to run while that appeal is pending in a
federal circuit court of appeals.” Order at 3, Gales v. Bruce, No. 04-3300-SAC
(D. Kan. Sept. 30, 2004). Despite this warning, Petitioner chose to seek a
certificate of appealability and wait for a decision from this court before seeking
state post-conviction relief. We denied his request for a certificate of
appealability on June 21, 2005, Gales v. Bruce, 136 F. App’x 179 (10th Cir.
2005), and Petitioner began the process of seeking state post-conviction relief in
January 2006. After he exhausted his state court remedies, he filed the instant §
2254 petition in 2007.
The district court found that the instant petition was time-barred by the
statute of limitations. The period for Petitioner to seek habeas review of his state
conviction expired in June 2005. He did not file a state petition within the
limitations period, and his federal filing could not statutorily toll the limitations
period. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). The district court
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rejected Petitioner’s arguments that the court had erred in dismissing Petitioner’s
earlier habeas petition and that the court should waive the limitations period
because the state court had entertained his state post-conviction action without a
time bar. The district court concluded that these assertions lacked legal merit and
provided no basis for excusing the untimely filing of the instant habeas petition.
Petitioner must obtain a certificate of appealability to challenge the district
court’s denial of his § 2254 habeas petition. See Montez v. McKinna, 208 F.3d
862, 866-67 (10th Cir. 2000). When the district court denies a habeas petition on
procedural grounds, we will issue a certificate of appealability only if the prisoner
shows that jurists of reason would find it debatable both “whether the petition
states a valid claim of the denial of a constitutional right” and “whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
In his application for a certificate of appealability, Petitioner essentially
argues that this court is at fault for the expiration of the limitations period
because we did not rule on his earlier petition until after the limitations period
had run. We note, however, that Petitioner was specifically warned that the
limitations period would continue to run while his appeal was pending, and
neither this court nor the district court prevented Petitioner in any way from filing
for state post-conviction relief before the expiration of the limitations period. We
see no basis for statutory or equitable tolling in any of the materials presented by
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Petitioner to the district court and this court.
Having carefully reviewed Petitioner’s brief and application for a
certificate of appealability, the district court’s disposition, and the record on
appeal, we conclude that reasonable jurists would not debate the correctness of
the district court’s procedural ruling. Accordingly, for substantially the reasons
set forth by the district court, we DENY Petitioner’s request for a certificate of
appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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