Watson v. Milyard

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 25, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

JERRY WATSON,

Petitioner-Appellant, No. 08-1412
v. District of Colorado
KEVIN MILYARD; THE (D.C. No. 1:08-CV-01223-ZLW)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

Respondents-Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO, MURPHY and McCONNELL, Circuit Judges.

Jerry Watson, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Watson has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
 Background

Mr. Watson seeks relief from sentences he incurred in 1996 in connection

with several counts of aggravated robbery in Colorado. He claims that he should

have been allowed to serve his Colorado sentences concurrently with, rather than

consecutively to, a prior Missouri sentence. His applications for relief in state

court were dismissed as untimely. In April 2008, Mr. Watson filed a 28 U.S.C. §

2254 motion in the Western District of Oklahoma, which was also dismissed as

untimely. Doc. 1 at 1. Mr. Watson appeals.

Discussion

The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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

quotation marks omitted).

Mr. Watson does not dispute that the period of time between when his 1996

sentences became final and he filed the instant case exceeds the one-year

limitations period, but he claims that his delay in seeking habeas relief was

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justifiable. He argues that when he was transferred to Oklahoma due to

overcrowding in Colorado, “the Colorado inmates did not have access to federal

and Colorado state court rules and legal materials.” COA Application at 2. Mr.

Watson thus contends that the court overlooked “a time period that should have

been tolled” because of his lack of access to the proper legal materials. Id. at 3.

This argument was not presented below. The argument Mr. Watson made

in district court was that his time spent in Missouri prison should be tolled

because he did not have Colorado legal materials there. The district court found

that the time Mr. Watson was in Missouri may have been a time when he did not

have access to Colorado legal materials, and so held that “a total of 169 days was

not tolled under § 2244(d).” Doc. 13 at 7. Mr. Watson is now asking this court

also to toll for the time he spent in Oklahoma prison. COA Application at 3. In

his filings in district court, however, there was no mention of any tolling

argument with respect to his time in Oklahoma. Indeed, the district court

expressly found that “Mr. Watson does not claim he was denied access to

Colorado legal materials either before he was transferred to Missouri or after he

was returned to Colorado.” Id.

We decline to consider arguments raised for the first time on appeal.

Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (“Because this claim was

not presented to the district court, we decline to consider it on appeal and,

accordingly, DISMISS that claim.”).

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 Conclusion

Accordingly, we DENY Mr. Watson’s request for a COA and DISMISS

this appeal. Petitioner’s motion to proceed in forma pauperis is also DENIED.

Entered for the Court,

Michael W. McConnell
Circuit Judge

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