FILED
United States Court of Appeals
Tenth Circuit
July 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MELVIN R. KERCHEE, JR.,
Petitioner-Appellant,
No. 11-6058
v. (D.C. No. 5:10-CV-01128-R)
(W.D. Okla.)
JUSTIN JONES,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Melvin Kerchee, an Oklahoma state prisoner proceeding pro se, 1 seeks a
certificate of appealability (“COA”) to challenge the district court’s denial of his
28 U.S.C. § 2254 habeas application. Mr. Kerchee has also filed a motion asking
*
This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel 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 case is therefore ordered submitted without oral argument.
1
Because Mr. Kerchee is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
this court to stay proceedings pending the state court’s resolution of his fourth
successive filing for post-conviction relief, as well as a motion to proceed in
forma pauperis on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and
2253(a), we deny Mr. Kerchee’s application for a certificate of appealability,
deny his motion to stay the proceedings, and dismiss his appeal. We also deny
his motion to proceed in forma pauperis.
BACKGROUND
In 2005, Mr. Kerchee was tried and convicted in the district court of
Comanche County, Oklahoma, on two counts of first-degree rape of a minor, for
which he received two consecutive, ten-year sentences. 2 The Oklahoma Court of
Criminal Appeals (“OCCA”) affirmed his conviction and sentence on May 21,
2007. No certiorari petition was filed with the United States Supreme Court.
According to Mr. Kerchee, he then filed three applications in the state
district court for post-conviction relief: one on November 12, 2008, which was
denied on December 19, 2008; a second on March 13, 2009, which was denied on
April 6, 2009; and a third on December 21, 2009, which was denied on January
26, 2010. Mr. Kerchee also represents in his Motion for a Stay of Proceedings
that he filed a fourth post-conviction motion on April 7, 2011.
On October 18, 2010, Mr. Kerchee filed a § 2254 habeas application in the
2
Mr. Kerchee’s conviction was based on the rape of two victims, both
of whom were minors.
2
United States District Court for the Western District of Oklahoma—more than a
year after his conviction became final on August 19, 2007. 3 The matter was
referred to a magistrate judge, who recommended that the petition be dismissed as
time-barred under 28 U.S.C. § 2244(d)(1)(A). Mr. Kerchee objected to the
magistrate judge’s Report and Recommendation, and the district court reviewed
the portions of the Report and Recommendation pertaining to those objections de
novo. The district court agreed with the magistrate judge’s disposition and, in a
thorough order and judgment, adopted his conclusion that Mr. Kerchee’s petition
was untimely. Mr. Kerchee then filed two motions asking the district court to
reopen and reconsider his case, both of which the court denied. He subsequently
sought a certificate of appealability from the district court, which was also
denied, along with Mr. Kerchee’s motion to proceed in forma pauperis. Mr.
Kerchee now seeks leave from this court to challenge the district court’s dismissal
of his habeas application, but asks us to stay our decision pending the state
court’s resolution of his most recent application for post-conviction relief.
3
Because direct review concluded when the OCCA affirmed Mr.
Kerchee’s conviction on May 21, 2007, the trial court’s judgment became final
ninety days later when the time period for filing a certiorari petition with the
United States Supreme Court expired—that is, on August 19, 2007. See Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); see also Sandoval v. Jones, No. 11-
5022, 2011 U.S. App. LEXIS 12124, at *5 n.3 (10th Cir. June 14, 2011). Mr.
Kerchee therefore had to file his habeas application by August 19, 2008—one
year from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A).
3
STANDARD OF REVIEW
A COA is a jurisdictional prerequisite to this court’s review of a habeas
application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,
1088 (10th Cir. 2009), cert. denied, 130 S. Ct. 3385 (2010). Thus, “[w]e will
issue a COA ‘only if the applicant has made a substantial showing of the denial of
a constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009)
(quoting 28 U.S.C. § 2253(c)(2)). In order to make such a showing, the applicant
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.” United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted).
“In other words, the applicant must show that the district court’s resolution of the
constitutional claim was either ‘debatable or wrong.’” Id. (quoting Slack, 529
U.S. at 484). In determining whether to grant a COA, this court conducts an
“overview of the claims in the habeas petition and a general assessment of their
merits.” United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting
Miller-El, 537 U.S. at 336) (internal quotation marks omitted). However, “[t]his
threshold inquiry does not require full consideration of the factual or legal bases
adduced in support of th[ose] claims.” Miller-El, 537 U.S. at 336.
4
DISCUSSION
Though Mr. Kerchee does not dispute that his October 2010 habeas petition
was untimely, 4 he argues that the district court erred in refusing to statutorily or
equitably toll AEDPA’s one-year statute of limitations. 5 We disagree.
I. Application of 28 U.S.C. § 2244(d)(1)
As a threshold matter, Mr. Kerchee appears to argue that the district court
erred in adopting the magistrate judge’s conclusion that AEDPA’s one-year
statute of limitations began to run ninety days from the date that the OCCA
affirmed his conviction—May 21, 2007. See 28 U.S.C. § 2244(d)(1)(A). First,
Mr. Kerchee contends that the “impediments of confiscation of legal mail [and]
4
In his habeas petition, Mr. Kerchee presented twenty-two claims
alleging, inter alia, ineffective assistance of counsel, improper sentencing
instructions at trial, evidentiary errors, discovery violations, insufficient evidence,
and prosecutorial and judicial misconduct.
5
In his combined Opening Brief and Application for a COA, Mr.
Kerchee sets forth twenty-one grounds for relief. Those grounds, many of which
are redundant, can be grouped into the following claims: (1) he was denied fair
and impartial review; (2) he was entitled to equitable tolling of AEDPA’s one-
year statute of limitations; (3) he was entitled to an evidentiary hearing; (4) he
was deprived of his right to due process, equal protection, and access to the courts
when his state court attorney was disbarred; (5) he was denied his right to
counsel; (6) his state post-conviction applications were “impeded by the lower
courts” and “restricted [by] counsel[’s] deception and misconduct,” Aplt. Opening
Br. and Appl. for a COA at 19; (7) the district court erred in failing to “inquire”
into the status of his state direct appeal; and (8) he possesses newly discovered
evidence that entitles him to a COA. However, because Mr. Kerchee concedes
that his October 2010 habeas petition was untimely, we need only consider these
constitutional arguments in the event that statutory or equitable tolling is
warranted.
5
legal work and material,” Aplt. Opening Br. and Appl. for a COA at 3, his
inability to proceed in forma pauperis, and the restrictive nature of OCCA Rule
3.14(B), somehow excused his untimely filing. Presumably, Mr. Kerchee is
arguing that AEDPA’s one-year statute of limitations did not begin to run until
these alleged “impediment[s] to filing an application created by State action in
violation of the Constitution or laws of the United States [were] removed,” 28
U.S.C. § 2244(d)(1)(B)—in other words, that the district court erred in applying
§ 2244(d)(1)(A), rather than § 2244(d)(1)(B). Mr. Kerchee’s arguments are
unavailing.
We assume that Mr. Kerchee’s argument regarding the alleged confiscation
of legal materials refers to his prior contention that prison officials deprived him
of his legal research and written work product from September 2008 through
February 2009. As the district court noted, however, this alleged misconduct
purportedly occurred after Mr. Kerchee’s habeas petition was otherwise due under
§ 2244(d)(1)(A), on August 19, 2008. Even if this allegation were true, therefore,
it does not excuse Mr. Kerchee’s failure to file a timely habeas application.
Moreover, as the magistrate judge observed, Mr. Kerchee filed ten motions and
complaints to various officials and agencies throughout the approximately six-
month time period during which his materials were purportedly confiscated.
Consequently, any “impediment” that the alleged deprivation of his legal
materials might have created seemingly would not have hindered his ability to file
6
a habeas application.
Mr. Kerchee’s in forma pauperis argument is equally unavailing. To the
extent that he has adequately raised such an argument—for which Mr. Kerchee
offers absolutely no support in his opening brief—we agree with the district court
that “his need to substantiate his financial condition . . . provide[s] no basis for
utilizing § 2244(d)(1)(B).” R., Vol. I, at 429 (Order, filed Jan. 27, 2011).
Assuming that Mr. Kerchee seeks to argue here, as he did below, that institutional
personnel hindered his ability to file a timely in forma pauperis motion, the
record contains no proof of this contention. Moreover, as the district court noted,
these allegations stemmed from conduct that purportedly occurred during the
same time frame—viz., September 2008 through February 2009—during which
Mr. Kerchee was allegedly deprived of his legal research and written work
product. As discussed above, Mr. Kerchee’s attempts to substantiate his financial
status after his habeas petition was due pursuant to § 2244(d)(1)(A), on August
19, 2008, has no bearing upon his ability to file a timely petition prior to that
date.
Finally, Mr. Kerchee’s argument as to Rule 3.14 of the Oklahoma Rules of
the Court of Criminal Appeals is meritless. Under Rule 3.14(B),
[a] petition for rehearing shall not be filed, as a matter of course,
but only for the following reasons:
(1) [s]ome question decisive of the case and duly submitted by
the attorney of record has been overlooked by the Court, or
7
(2) [t]he decision is in conflict with an express statute or
controlling decision to which the attention of [the OCCA] was
not called either in the brief or in oral argument.
Okla. Stat. tit. 22, ch. 18, app., R. 3.14(B) (emphasis added). Mr. Kerchee alleges
that this rule “deliberately and intentionally prevent[s] and restrict[s] pro se
access to ‘direct appeal rehearing’” by “deliberately not allowing ‘pro se
applicants’ access to their courts simply because they are pro se and not . . .
‘attorneys of record.’” Aplt. Opening Br. and Appl. for a COA at 10. Even
assuming, arguendo, that this were true, the unavailability of rehearing in state
court does not explain Mr. Kerchee’s failure to file a timely habeas petition in
federal court. Furthermore, we note that Mr. Kerchee contends that he continues
to be subject to Rule 3.14(B). If this is true, the statute of limitations has not
begun to run because the impediment has yet to be removed—a premise that does
not comport with the fact that Mr. Kerchee has already filed a habeas petition,
albeit an untimely one. See 28 U.S.C. § 2244 (d)(1)(B).
Additionally, Mr. Kerchee contends that the limitations period should have
run from the date on which “the factual predicate was discovered,” Aplt. Opening
Br. and Appl. for a COA at 17—more specifically, the date on which Mr. Kerchee
first learned that his state appellate counsel had been disbarred and had failed to
file a timely petition for rehearing on his behalf. Presumably, Mr. Kerchee is
asserting that the magistrate judge should have applied § 2244(d)(1)(D). See 28
U.S.C. § 2244(d)(1)(D) (providing that the statute of limitations may run from
8
“the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence”). However, as
discussed below, Mr. Kerchee discovered that his counsel had been disbarred, at
the very latest, on July 6, 2008. Thus, even if § 2244(d)(1)(D) had applied, Mr.
Kerchee would have needed to file a habeas petition within one year of this
discovery—by July 6, 2009. Consequently, even if we were to credit this
argument, his October 2010 petition would still be untimely.
II. Statutory Tolling
Under 28 U.S.C. § 2244(d)(2), “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of
limitation.” In other words, “[u]sually the running of the statute of limitations is
suspended while a prisoner is pursuing relief in the state courts,” Titsworth v.
Mullin, No. 10-7034, 2011 U.S. App. LEXIS 2829, at *16 (10th Cir. Feb. 14,
2011)—that is, a petitioner is entitled to statutory tolling of AEDPA’s one-year
statute of limitations while he pursues state post-conviction relief. In his COA
application, Mr. Kerchee appears to allege that both the magistrate judge and the
district court erred in refusing to toll the statute of limitations while his “properly
filed post-conviction motion [was] pending in state court.” Aplt. Opening Br. and
Appl. for a COA at 3. This argument is problematic for two reasons.
First, Mr. Kerchee failed to assert a statutory tolling argument before the
9
district court. See R., Vol. I, at 387 (Report and Recommendation, filed Jan. 7,
2011) (“Petitioner’s claim that his federal habeas action is timely relies solely on
the doctrine of equitable tolling.”). Generally, “an appellate court will not
consider an issue raised for the first time on appeal.” Tele-Commc’ns, Inc. v.
Comm’r of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993). And Mr.
Kerchee’s failure to argue for application of the plain-error standard “surely
marks the end of the road for [this] argument for reversal not first presented to the
district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.
2011).
Second, even if we were to consider this argument, it would fail on the
merits. Although Mr. Kerchee did file multiple state court motions for post-
conviction relief, these motions were not “properly filed,” 28 U.S.C.
§ 2244(d)(2)—i.e., they were not timely. A review of the record reveals that Mr.
Kerchee first filed an application for post-conviction relief, at the earliest, on
September 8, 2008—the date on which he made an untimely request for rehearing
of his direct appeal. As he made this first filing after the one-year statute of
limitations expired on August 19, 2008, he was not entitled to statutory tolling
while any of his post-conviction filings were pending. See R., Vol. I, at 387
(“Because state court filings made after the expiration of the statute of limitations
have no tolling effect, . . . and in this case the first such filing was after the
limitations period expired, it is unnecessary to consider whether other, even later,
10
post-conviction efforts statutorily tolled the AEDPA year.” (citing Fisher v.
Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001))); id. at 430 (“Statutory tolling
is permitted only when there are properly filed applications for State
post-conviction or other collateral review filed before expiration of the one-year
statute of limitations period. No such documents were filed in this case, and
accordingly, Petitioner cannot rely on statutory tolling to avoid dismissal of this
action.”).
III. Equitable Tolling
As the Supreme Court recently reaffirmed, § 2244(d) is subject to equitable
tolling. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (“[L]ike all 11
Courts of Appeals that have considered the question, we hold that § 2244(d) is
subject to equitable tolling in appropriate cases.”). However, equitable tolling is
only available in those “rare and exceptional circumstances,” Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998)) (internal quotation marks omitted), in which application of the
limitations period might render the habeas remedy “inadequate and ineffective,”
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Consequently, courts will
consider the merits of an otherwise untimely habeas petition only where the
petitioner “show[s] specific facts” demonstrating “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his
way.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted)
11
(internal quotation marks omitted); see also Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000). On the record before us here, reasonable jurists could not
debate that Mr. Kerchee has failed to meet this two-prong standard.
A. Extraordinary Circumstances
First, Mr. Kerchee argues that he is entitled to equitable tolling “due to
threats, possible harm, injury, irreparable harm, . . . death, fear, [and] retaliation
from other inmates.” Aplt. Opening Br. and Appl. for a COA at 9. Mr. Kerchee
explains that “[i]nmates with [his] type of charges and convictions are considered
child molesters who[] are attacked, beaten, battered, robbed,” and sometimes
killed by their fellow inmates. Id. As the district court observed, however, the
fact that the nature of Mr. Kerchee’s conviction “may make him more vulnerable
while incarcerated does not support a finding that the statute of limitations period
should be equitably tolled.” R., Vol. I, at 432. Moreover, Mr. Kerchee offers no
evidence that he actually fell victim to such threats or physical harm, let alone
that these speculative dangers constituted extraordinary circumstances that caused
his failure to file a timely habeas petition. See Marsh, 223 F.3d at 1220 (“[T]his
equitable remedy is only available when an inmate diligently pursues his claims
and demonstrates that the failure to timely file was caused by extraordinary
circumstances beyond his control.” (emphasis added)). Consequently, this
argument cannot support Mr. Kerchee’s equitable tolling claim.
Next, Mr. Kerchee offers the conclusory assertion that he is entitled to
12
equitable tolling “due to . . . constitutional violations, plain error, the interest of
justice, fundamental error, the ends of justice, miscarriage of justice, actual and
factual innocence, new evidence, recantation of testimony and statements of the
victims,” and a string of additional incidents that allegedly occurred before the
state trial court. Id. at 12. First of all, as the district court noted, “[t]he merits of
the constitutional violations are to be tested in a timely filed petition for habeas
corpus relief, and the[se] alleged constitutional errors at trial have no bearing on
[Mr. Kerchee’s] ability to seek such relief under § 2254.” R., Vol. I, at 476–77
(Order, filed Feb. 16, 2011) (emphasis added). In any event, Mr. Kerchee fails to
articulate which of his constitutional rights were allegedly violated, what errors
were made, or how the proceedings below constituted a “miscarriage of justice.”
Thus, to the extent that Mr. Kerchee raises these arguments, they are inadequately
presented on appeal, and we need not consider them here. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.” (emphasis added)); see also United States v. Pursley,
577 F.3d 1204, 1231 n.17 (10th Cir. 2009) (“[A]lthough Mr. Pursley alluded to
the ex parte issue in his appellate brief, that skeletal reference does not present a
cognizable issue for appellate review.”), cert. denied, 130 S. Ct. 1098 (2010). In
any event, in the absence of any evidence substantiating these bald assertions, we
are left with no basis upon which we might conclude that these alleged violations
13
and errors amounted to “extraordinary circumstances.”
Finally, Mr. Kerchee alleges that the statute should have been tolled for
“the time of discovery that his retained appellate counsel . . . was ‘disbarred.’”
Aplt. Opening Br. and Appl. for a COA at 16. Mr. Kerchee appears to contend
that his counsel had “said he was going to file” something on Mr. Kerchee’s
behalf—apparently a petition for rehearing in state court. Id. This, Mr. Kerchee
represents, should have afforded him an extra “20 days from May 21, 2007[,]” in
which to file this petition—that is, until June 11, 2007. Id. (emphasis omitted).
Accordingly, he would have had “a total of 110 days” before his conviction
become final on September 11, 2007. Id. (emphasis omitted). Pursuant to this
logic, Mr. Kerchee would then have had to file a habeas petition by September 11,
2008. However, even assuming, arguendo, that Mr. Kerchee was entitled to this
twenty-day tolling, his October 18, 2010 habeas filing was still untimely.
Furthermore, as the magistrate judge explained, the record demonstrates
that Mr. Kerchee’s direct appeal concluded long before his appellate counsel was
disbarred, and that Mr. Kerchee learned of his counsel’s disbarment no later than
July 6, 2008, when he filed a letter of complaint to the Oklahoma Bar
Association. At that point, Mr. Kerchee still had over a month to file his habeas
petition before the August 19, 2008 deadline. R., Vol. I, at 391. Moreover, as the
district court later observed, “[t]here is no constitutional right to counsel beyond
the first appeal of right,” and a petition for rehearing is not a proceeding “of
14
right.” Id. at 433; see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
(“Our cases establish that the right to appointed counsel extends to the first
appeal of right, and no further. Thus, we have rejected suggestions that we
establish a right to counsel on discretionary appeals.”). Mr. Kerchee therefore
had no “right” to his counsel’s filing of a petition for rehearing on his behalf, and
he presents no evidence that either he or his wife ever communicated their desire
to file a discretionary rehearing petition to Mr. Kerchee’s counsel. As such, Mr.
Kerchee offers no evidence that his counsel’s disbarment was somehow an
“extraordinary circumstance” that constituted an impediment to his timely habeas
filing—or, for that matter, an impediment at all.
B. Diligent Pursuit
Even if Mr. Kerchee had established that “extraordinary circumstances”
hindered his ability to file a timely habeas petition, he has failed to demonstrate
that he diligently pursued his federal claims. See, e.g., Burger v. Scott, 317 F.3d
1133, 1141 (10th Cir. 2003) (“[T]his Circuit has generally declined to apply
equitable tolling when it is facially clear from the timing of the state and federal
petitions that the petitioner did not diligently pursue his federal claims.”).
Though Mr. Kerchee asserts that he has worked “‘diligently’ and in good faith in
pursuing his state court collateral review and relief,” the only “support” that he
offers for this statement is the unsubstantiated argument that “the district court[’]s
ruleing [sic] on ‘diligence’ [was] unreasonable[,] too harsh, strict, unfair and
15
unlenient [sic].” Aplt. Opening Br. and Appl. for a COA at 21. This clearly falls
far short of a demonstration that he has diligently pursued his claims. See Yang,
525 F.3d at 928 (“[A]n inmate bears a strong burden to show specific facts to
support his claim of extraordinary circumstances and due diligence.” (alteration in
original) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))
(internal quotation marks omitted)). Moreover, as the magistrate judge noted, Mr.
Kerchee was given every opportunity to do so. Mr. Kerchee himself provides
evidence that the Clerk of Court supplied him with the proper forms to institute
his federal habeas action in early October 2008, yet he failed to file a petition
until October 2010—approximately two years later. Additionally, instead of
filing an application for post-conviction relief in state court that could have tolled
the statute of limitations pertaining to his habeas action, Mr. Kerchee elected to
file an untimely petition for rehearing, along with a slew of complaints against
lawyers, presiding judges, and others. Thus, even if Mr. Kerchee had presented a
plausible extraordinary circumstances claim, reasonable jurists could not dispute
that his failure to demonstrate diligent pursuit renders equitable tolling
inappropriate.
C. Actual Innocence
Finally, Mr. Kerchee alleges that “newly discovered and revealed evidence”
demonstrates that he is actually innocent. Opening Br. and Appl. for a COA at
24. Of course, § 2244(d)’s procedural bar does not preclude us from entertaining
16
claims of actual innocence, and a petitioner asserting actual innocence need not
demonstrate cause for his delay in raising such a claim. See Lopez v. Trani, 628
F.3d 1228, 1230–31 (10th Cir. 2010) (“[A] sufficiently supported claim of actual
innocence creates an exception to procedural barriers for bringing constitutional
claims, regardless of whether the petitioner demonstrated cause for the failure to
bring these claims forward earlier.”). However, Mr. Kerchee must still present a
“colorable claim of factual innocence”; in other words, he must present “new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 322, 324 (1995); see also United States v.
Payne, No. 10-5111, 2011 U.S. App. LEXIS 12233, at *6 (10th Cir. May 10,
2011) (“[E]ven if a colorable claim of actual innocence might be entitled to
special treatment, [petitioner’s] claim is not colorable.”); Weibley v. Kaiser, 50 F.
App’x 399, 403 (10th Cir. 2002) (determining that petitioner’s actual innocence
argument “fail[ed] because he d[id] not make a colorable claim of actual
innocence. [Petitioner] makes only conclusory allegations regarding his
innocence and provides no analysis or specific facts to warrant equitable tolling.”
(emphasis added)). Under this rigorous standard, “the petitioner must show that it
is more likely than not that no reasonable juror would have convicted him in . . .
light of the new evidence.” Schlup, 513 U.S. at 327.
Mr. Kerchee presents three affidavits in support of his actual innocence
17
claim, none of which we find persuasive. In the first, Don Jensen, who apparently
served as a Boy Scout troop leader with Mr. Kerchee, suggests that the allegations
against Mr. Kerchee were the result of a plot by one of the victim’s stepfathers to
overthrow Mr. Kerchee and takeover his position as Commander of the Comanche
War Scouts. Mr. Jensen also states that the stepfather of the other victim
personally approached him and informed him that the allegations against Mr.
Kerchee were false, and insists that Mr. Kerchee’s trial counsel was incompetent.
In the second affidavit, another of Mr. Kerchee’s Boy Scout colleagues avers that
“pre-trial publicity” deprived Mr. Kerchee of his right to a fair trial, and similarly
represents that Mr. Kerchee’s trial counsel was ineffective. R., Vol. I, at 233–36
(Aff. of Bill Walker, Def.’s Ex. Z, filed Nov. 23, 2010). The third affiant—a
child caregiver at a children’s shelter that one of the victims attended—testifies to
one of the victim’s “sexually inappropriate fantasies,” her “unstable and
intolerable behavior,” and her tendency to tell lies. She too complains of Mr.
Kerchee’s trial counsel’s performance. Id. at 238–42 (Aff. of Debra Herrera,
Def.’s Ex. AA, filed Nov. 23, 2010).
Although these affidavits may call into question the quality of Mr.
Kerchee’s legal representation, none of them would cause a reasonable juror to
question the validity of his conviction. Each of the three affiants was available to
testify at the time of trial—in fact, both Mr. Jensen and Mr. Walker did testify on
Mr. Kerchee’s behalf. Consequently, these affidavits do not constitute “new
18
reliable evidence” in the first place. See, e.g., In re Harrison, No. 08-2271, 2008
U.S. App. LEXIS 28094, at *2 (10th Cir. Nov. 25, 2008) (finding that petitioner
failed to present “new” evidence of his actual innocence where “the victim’s
recantation was not new” because she had “recanted her statements to law
enforcement even before [petitioner’s] trial”); Price v. Friel, 245 F. App’x 855,
856–57 (10th Cir. 2007) (concluding that petitioner’s proffered evidence was not
“new” where he was told during his psychological interview “that a report of the
evaluation would be made and sent to the court” and “[a]lthough he may not have
read its ultimate conclusion until well after trial, he certainly knew of the report’s
existence before trial”); see also O’Boyle v. Ortiz, 242 F. App’x 529, 531 (10th
Cir. 2007) (rejecting petitioner’s actual innocence claim where “[m]ost of his
‘new’ evidence [was] really speculation about what might be shown if certain
tests were performed on physical evidence in the case”). Furthermore, the third
affiant—Ms. Herrera, who served as a caregiver to one of the victims—speaks
only to the victim’s character, not to whether Mr. Kerchee is actually guilty of the
crime for which he was convicted. As such, reasonable jurists could not disagree
with the district court’s conclusion that Mr. Kerchee has failed to present a
colorable claim of actual innocence.
IV. Motion to Stay
Mr. Kerchee also asks us to stay our disposition of his COA application
pending the state court’s resolution of a post-conviction motion that Mr. Kerchee
19
supposedly filed in April 2011. In so doing, however, Mr. Kerchee cites no
authority for the granting of such relief under the circumstances presented here,
nor has he sought a similar stay from the district court below.
Construing this request very liberally, Mr. Kerchee’s argument appears to
be somewhat akin to that of the petitioner in Fairchild v. Workman, 579 F.3d
1134 (10th Cir. 2009). In that case, the petitioner—who had been convicted of
first-degree murder—furnished the district court with two new affidavits when he
submitted his habeas petition, both of which “establish[ed] the link between his
prior history of drug abuse and head injuries and possible physical, organic brain
injury; and furnish[ed] evidence that he in fact had such an injury.” Id. at 1149.
Though the petitioner’s trial counsel had been aware of this evidence at the time
of trial, he chose “to focus only on alcohol abuse” as a mitigating factor,
allegedly without “considering the availability of other more powerful mitigating
evidence.” Id. This court, therefore, concluded that “the facts reflected in [this]
additional evidence . . . might well support a claim of ineffective assistance.” Id.
at 1151. However, because the petitioner had yet to present these affidavits to the
state court, we vacated the district court’s judgment and remanded the case with
instructions to determine whether the stay-and-abeyance procedure should be used
to permit the petitioner “to exhaust his new potentially meritorious claim for
ineffective assistance of counsel and for it to conduct further proceedings
consistent with this opinion.” Id. at 1156 (emphasis added).
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Even assuming, arguendo, that Mr. Kerchee could rely upon our analysis in
Fairchild, he has not advanced a new claim, let alone a meritorious one. Mr.
Kerchee’s first argument—that a stay would allow the state court to consider the
“new” affidavits of Mr. Jensen, Mr. Walker, and Ms. Herrera—is a non-starter.
As discussed above, there is nothing “new” about the information contained in
these affidavits; each of the three affiants was available and willing to testify at
the time of trial, and two of them did testify on Mr. Kerchee’s behalf.
Mr. Kerchee’s second argument is equally unpersuasive. Though he makes
the conclusory assertion that Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009),
cert. denied, 130 S. Ct. 1072 (2010), and Cone v. Bell, 129 S. Ct. 1769 (2009),
somehow constitute an “intervening change in the law,” Aplt.’s Mot. for a Stay of
Proceedings at 2, Mr. Kerchee explains neither the significance of this supposedly
“intervening” caselaw nor its application to his case, let alone how it constitutes a
“new claim” that might warrant state court review. Thus, Mr. Kerchee has
effectively waived this second argument. See Bronson, 500 F.3d at 1104; see also
DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993) ( “[W]hile we hold pro se
litigants to a less stringent standard, it is not the proper function of the district
court to assume the role of advocate for the pro se litigant.”).
Furthermore, as we observed in Fairchild, “not every new piece of
evidence makes a claim a new one,” and Mr. Kerchee does not argue that these
three affidavits or the supposedly “intervening” case law constitute new claims as
21
opposed to merely new evidence. See 579 F.3d at 1148; see also Gardner v.
Galetka, 568 F.3d 862, 881, 882 (10th Cir. 2009) (deferring to the state court’s
ineffective-assistance-of-counsel determination where additional evidence “would
likely only have added color” to the ineffective-assistance claim, and the
difference between the evidence before the state court and the new evidence “was
purely a matter of degree”). In fact, the three affidavits offered in support of Mr.
Kerchee’s first argument appear to pertain to the same ineffective-assistance-of-
counsel argument that he raised in his first state post-conviction motion, which
the state court denied and dismissed on December 19, 2008. As Mr. Kerchee
offers absolutely no explanation as to how this additional evidence “so changes
the legal landscape that the state court’s prior analysis no longer addresses the
substance of [his] claim,” we are left with no basis upon which we might
conclude that he presents a “new claim” that warrants remand to the district court
under Fairchild. 579 F.3d at 1149.
CONCLUSION
For the foregoing reasons, we DENY Mr. Kerchee’s application for a COA,
DENY his motion to stay the proceedings, and DISMISS his appeal. We also
DENY Mr. Kerchee’s motion to proceed in forma pauperis, as he has not
demonstrated “the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624,
627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,
22
812 (10th Cir. 1997)) (internal quotation marks omitted). 6
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
6
Mr. Kerchee’s pending motion to pay the appellate filing fees in
partial payments is also denied.
23