Brown v. Roberts

FILED
United States Court of Appeals
Tenth Circuit

November 14, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DAVID R. BROWN,

Petitioner-Appellant,
No. 11-3085
v. (D.C. No. 5:09-CV-03248-SAC)
(D. Kan.)
RAY ROBERTS; ATTORNEY
GENERAL OF KANSAS,

Respondents-Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

David R. Brown, a Kansas state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

*
This order is not binding precedent, except under the doctrines of law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. Brown 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).
Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr. Brown a COA.

I

In 1997, Mr. Brown was convicted in Kansas state court on charges of

aggravated robbery and kidnaping. 2 Mr. Brown filed a notice of appeal with the

state appellate court in 1997, but his counsel failed to docket or further pursue the

appeal.

Relevant for our purposes, in 2005, Mr. Brown filed a federal habeas

application pursuant to 28 U.S.C. § 2254, challenging his 1997 convictions and

claiming, inter alia, “that [his] court-appointed attorneys were ineffective because

they failed to pursue appeals in a timely manner.” Brown I, 177 F. App’x at 775.

The district court dismissed the application as time barred, and Mr. Brown

appealed. A panel of this court held that dismissal was proper, but not on the

same ground as that articulated by the district court. Because the Kansas state

courts had never entered a formal order dismissing the 1997 appeal, and thus Mr.

Brown’s direct appeal potentially “remain[ed] alive,” id. at 777, we concluded

that “reasonable jurists could debate whether the district court was correct in its

procedural ruling dismissing the petition as time barred,” id. at 778. Accordingly,

2
Mr. Brown had previously been convicted in state court for
aggravated armed robbery in 1981 and was “sentenced as a habitual offender to
ten to forty years in prison.” Brown v. Roberts (Brown I), 177 F. App’x 774, 775
(10th Cir. 2006). He won postconviction relief in 1992 and received a reduced
sentence and conditional release. Id.

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we vacated the district court’s judgment dismissing the petition as to the 1997

convictions as time barred, and remanded to the district court “with instructions

to dismiss the petition without prejudice for failure to exhaust available remedies

in state court.” Id. at 780. 3

Mr. Brown returned to the state courts and sought leave to docket his direct

appeal out of time. The Kansas Court of Appeals summarily denied his motion on

May 1, 2007, and the Kansas Supreme Court affirmed the denial on June 21,

2007.

Mr. Brown filed a second § 2254 application with the federal district court

in 2007, again raising various constitutional claims. The district court dismissed

without prejudice for failure to exhaust all state court remedies. The district court

observed that under State v. Ortiz, 640 P.2d 1255 (Kan. 1982), Kansas courts are

permitted to entertain an untimely appeal where its untimeliness is due to

counsel’s failure to perfect and complete the appeal. Given that there was no

indication that Mr. Brown had sought relief under the exception articulated in

Ortiz, the district court concluded that state remedial action was not definitively

foreclosed, and thus dismissed for failure to exhaust. The district court “advised

[Mr. Brown] that if his direct appeal [wa]s not reinstated [under Ortiz], any

3
In his 2005 habeas application, Mr. Brown also brought challenges
related to his 1981 conviction. Brown I, 177 F. App’x at 775. However, this
court dismissed these challenges as constituting an impermissible second or
successive habeas action. Id. at 776.

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attempt to seek federal habeas corpus relief w[ould] be subject to the one year

limitation period imposed by 28 U.S.C. § 2244(d)(1).” Brown v. Roberts, No. 07-

3227-SAC, 2009 WL 352867, at *2 (D. Kan. Feb. 12, 2009). Rather than proceed

immediately to state court, however, Mr. Brown sought a COA from this court to

appeal the district court’s dismissal of his second § 2254 application. We denied

his request, holding that “[b]ecause remedies under Ortiz may still be available, a

reasonable jurist could not dispute the correctness of dismissing Mr. Brown’s §

2254 application on exhaustion grounds.” Brown v. Roberts (Brown II), 336 F.

App’x 781, 783 (10th Cir. 2009) .

Mr. Brown then filed a “motion for exception” with the Kansas Court of

Appeals seeking permission to file an out-of-time appeal under Ortiz. The Kansas

appellate court clerk’s office responded with a letter stating that Mr. Brown’s

1997 appeal had been closed in June of 2007, and that “nothing more can be filed

in the[] matter[].” R. at 112 (Ltr. from Jason P. Oldham to David Brown, dated

Sept. 29, 2009).

Mr. Brown then filed another § 2254 application on November 16, 2009,

which the district court dismissed as time barred based on two alternative

grounds. See id. at 156–59 (Dist. Ct. Mem. & Order, dated Mar. 15, 2011). First,

the court reasoned:

The Supreme Court has instructed that if a state court
enters an order allowing an appellant to file [an] out-of-time
direct appeal, that resets the date a conviction becomes “final”

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 for purposes of 28 U.S.C. § 2244(d)(1)(A). . . . The mere
“possibility that a state court may reopen direct review” does not
render a state conviction and sentence nonfinal for purposes of
§ 2244(d)(1)(A). Jimenez [v. Quarterman, 555 U.S. 113, 120 n.4
(2009)] (quotation marks and citation omitted). “[W]here a state
court has in fact reopened direct review, the conviction is
rendered nonfinal for purposes of § 2244(d)(1)(A).” Id.
(emphasis added).

In petitioner’s case, the Kansas appellate court clerk’s
rejection of petitioner’s latest attempt to reinstate his direct
appeal did not render his 1997 conviction “final” for purposes of
§ 2244(d)(1)(A) under the narrow holding in Jimenez because no
state court order granting petitioner leave to pursue his direct
appeal out of time resulted.

Federal court orders have identified the legal status of
petitioner’s direct appeal in the state courts as being in an
“appellate limbo” under Kansas law, and have twice advised
petitioner that reinstatement of his direct appeal is the only
avenue available for pursuing federal habeas corpus review in a
timely manner. Petitioner’s lack of success in the state courts
arguably establishes that reinstatement of his direct appeal under
Ortiz is now foreclosed, which essentially leaves him with no
remedies to pursue regarding his direct appeal in the state courts.
Although petitioner may be correct in contending that he has now
exhausted state court remedies, he is still unable to establish that
he filed the present § 2254 application within one year from the
date his 1997 conviction became “final” for purposes of
§ 2244(d)(1)(A).

Id. at 156–57. However, even though the district court concluded that Mr. Brown

is “unable to establish that he filed the present § 2254 application within one year

from the date his 1997 conviction became ‘final,’” id. at 157, the court did not

indicate the date of finality.

Alternatively, the district court articulated “an even more complicated

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scenario to [Mr. Brown’s] exhaustion of state court remedies, which nonetheless

would warrant dismissal of this action as time barred.” Id. Under this alternate

ground for dismissal, the district court looked to the court filings and decisions in

a separate but related state court action—an appeal involving Mr. Brown’s

“motion for arrest of judgment,” which was filed in connection with both his 1981

conviction and his 1997 conviction. See State v. Brown, 182 P.3d 40, No. 96,774,

2008 WL 1946822, at *1 (Kan. Ct. App. May 2, 2008) (per curiam) (unpublished

table decision). It explained:

In Kansas Appeal No. 96774 filed by petitioner in June 2006 [the
appeal regarding the motion for arrest of judgment], the Kansas
Court of Appeals references in part petitioner’s May 6, 2004,
motion to correct an illegal sentence in Sedgwick County Case
No. 96-CR-1729. The state district court treated this motion over
petitioner’s objection as a motion for collateral review under
K.S.A. 60-1507 and denied relief. The Kansas Court of Appeals
chose to independently review petitioner’s claims and affirmed
the district court’s judgment, deeming that petitioner had waived
or abandoned his claims, and that petitioner was entitled to no
relief even if the appellate court were to reach the merits of those
claims. The Kansas Supreme Court denied review on July 2,
2008.

R. at 157–58 (citations omitted). After taking judicial notice of the appellate

briefs filed in the collateral proceedings, the district court noted that they indicate

the fact that the Kansas district court granted Mr. Brown “leave to appeal out of

time in Sedgwick County Case No. 96-CR-1729 [i.e., the appeal related to his

1997 convictions] pursuant to Ortiz, and note[d] petitioner’s failure to

successfully docket that appeal (Kansas Appeal No. 98458).” Id. at 158 (citation

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omitted).

Construing this information liberally, the court effectively concluded that

“one could argue the ‘appellate limbo’ of petitioner’s direct appeal from his 1997

conviction was in fact resolved when the state district court granted petitioner

leave to pursue an out of time appeal.” Id. at 158–59. Consequently, the court

reasoned, his “direct appeal became final in June 2007 when the Kansas Court of

Appeals denied petitioner leave to docket that appeal out of time and the Kansas

Supreme Court denied further review.” Id. at 159. In light of the fact that Mr.

Brown’s collateral proceeding was “already pending in the state courts at that

time,” id., the district court concluded that he qualified for immediate tolling of

the limitations period pursuant to § 2244(d)(2) until the collateral proceedings

were resolved on July 2, 2008. See id. It thus reasoned that, “[e]ven under this

best case scenario . . . the instant habeas action, filed more than one year later in

November 2009, would still be time barred.” Id.

Mr. Brown now seeks a COA to appeal from the district court’s dismissal

of his third habeas application.

II

A

A COA is a jurisdictional prerequisite to this court’s review of the merits of

a habeas appeal. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

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(2003)); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49 (2012) (discussing,

inter alia, the “clear” jurisdictional language in § 2253(c)(1)). We will issue a

COA only if the applicant makes “a substantial showing of the denial of a

constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012)

(quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted); Clark, 468

F.3d at 713. “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude that the issues presented are adequate to

deserve encouragement to proceed further.” Dulworth v. Jones, 496 F.3d 1133,

1136–37 (10th Cir. 2007) (quoting Miller-El, 537 U.S. at 327) (internal quotation

marks omitted).

When the district court denies relief to an applicant “on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

‘that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281

(10th Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also

Gonzalez, 132 S. Ct. at 648. “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Woodward, 693 F.3d at

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1292 (quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).

B

A prisoner in state custody must file his federal habeas petition “within the

one-year limitation period set forth in [28 U.S.C.] § 2244(d)(1).” Sigala v. Bravo,

656 F.3d 1125, 1126 (10th Cir. 2011); see Gonzalez, 132 S. Ct. at 652–53. The

one-year period runs from the latest of four specified dates in 28 U.S.C.

§ 2244(d)(1). Pertinent for our purposes, it runs from “the date on which the

judgment [of conviction] 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).

However, the limitation period is tolled both during the pendency of “properly

filed application[s] for State post-conviction or other collateral review with

respect to the pertinent judgment,” id. § 2244(d)(2), and, in “rare and exceptional

circumstances,” for equitable purposes, Sigala, 656 F.3d at 1127 (quoting York v.

Galetka, 314 F.3d 522, 527 (10th Cir. 2003)) (internal quotation marks omitted).

At the end of our analysis, we conclude that Mr. Brown’s petition is untimely.

While we arrive at that conclusion through a somewhat different path than that

employed by the district court, we find that reasonable jurists could not disagree

with the district court’s ultimate resolution in dismissing the petition.

We proceed to identify the date Mr. Brown’s convictions went final. The

respondent first contends that Mr. Brown’s convictions went final in 1997

because he failed to perfect his appeal as required under Kansas law. From the

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record, it appears as if Mr. Brown was sentenced on June 25, 1997. Under the

rules then applicable, he had ten days from the date the judgment of sentence was

entered in his criminal case in which to file a notice of appeal, see K AN . S TAT .

A NN . § 22-3608(c) (1997) (“For crimes committed on or after July 1, 1993, the

defendant shall have 10 days after the judgment of the district court to appeal.”),

and twenty-one days from the date the notice of appeal was filed in which to file a

docketing statement, see Kan. Sup. Ct. R. 2.041(a). Mr. Brown’s attorney “fax

filed a Notice of Appeal on July 1, 1997”—properly within the ten-day time

period as required under K AN . S TAT . A NN . § 22-3608. R. at 56 (Ltr. from Michael

C. Brown to Kristi L. Barton, dated Jan. 31, 2005). Consequently, under Kan.

Sup. Ct. R. 2.041(a), Mr. Brown should have filed a docketing statement by July

22, 1997—twenty-one days after he filed a notice of appeal. Of course, no such

docketing statement was filed.

Thus, as a threshold matter and outside of any exceptions, the initial

“conclusion of direct review or the expiration of the time for seeking such

review,” 28 U.S.C. § 2244(d)(1)(A), in Mr. Brown’s case was July 22, 1997. On

that date, he could no longer seek direct review due to the fact that his appeal

could be deemed abandoned under state law. See Kan. Sup. Ct. R. 5.051 (1997)

(noting that the failure to file a timely docketing statement “shall be deemed to be

an abandonment of the appeal”). Under the “anniversary method” applicable in

this circuit, the one-year limitations period would have begun running the next

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day, July 23, 1997, and, absent any tolling, would have ended on July 23, 1998.

See United States v. Hurst, 322 F.3d 1256, 1260–61 (10th Cir. 2003). The instant

petition was filed on November 16, 2009, over eleven years after the limitations

period would have expired under the latter sequence.

Despite the foregoing, however, this court concluded in 2006, for various

reasons, that Mr. Brown should have the opportunity to return to state court in

order to determine whether he could docket his direct appeal out of time under

state procedural law. See Brown I, 177 F. App’x at 777–78. We articulated that

Mr. Brown’s direct appeal “may remain alive” because:

[T]he [state] district court never entered an order dismissing [his]
appeal despite the mandatory language of [Kan. Sup. Ct. R. 5.051
(1997)]. . . . Deepening the mystery over the status of Mr.
Brown’s appeal, the Kansas Supreme Court revised Rule 5.051
in 2005 such that the failure to file a timely docketing statement
“shall be presumed to be an abandonment of the appeal and the
district court may enter an order dismissing the appeal.” Kan.
Sup. Ct. R. 5.051 (200[6] ed.) (emphasis added). It is not clear,
as a matter of Kansas procedural law, whether Mr. Brown’s
direct appeal is now governed by the old “deemed” abandoned
language and mandatory dismissal, or the new “presumed”
abandoned language and optional dismissal.

Id. In addition to the uncertainty as to the date of finality in Mr. Brown’s case

that the 2005 revision of Rule 5.051 created, the Supreme Court of Kansas has

suggested, in a case prior to that revision, that Rule 5.051 requires the entry of a

dismissal order by the state district court in order for an improperly docketed

appeal to be finally dismissed. See City of Kansas City v. Lopp, 4 P.3d 592, 594

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(Kan. 2000) (“Rule 5.051 sets forth that after an appeal is dismissed by the

district court, the dismissal is final ‘unless the appeal is reinstated by the

appellate court having jurisdiction of the appeal.’” (first emphasis added)

(quoting Kan. Sup. Ct. R. 5.051)). Thus, in the final disposition in Brown I, we

appropriately did not determine the date Mr. Brown’s conviction went final. 4

Instead, we remanded to the district court with instructions to dismiss Mr.

Brown’s petition without prejudice in order to permit him the opportunity of

returning to state court in order to reinitiate his direct appeal. See id. at 779. Mr.

Brown ultimately was unsuccessful in that endeavor.

Indeed, on return to state court, the Kansas Court of Appeals denied Mr.

Brown’s motion to docket his appeal out of time on May 1, 2007. Moreover, the

Kansas Supreme Court refused further review on June 21, 2007. Thus, any

ambiguity in the status of the finality of Mr. Brown’s conviction was dispelled by

entry of these orders. The Kansas state courts spoke and thereby effectively

pegged the date for when Mr. Brown’s appeal became final under Kansas

law—June 21, 2007. 5

4
It must be emphasized that we adopted only “the best course” of
action “[g]iven the uncertain status of Kansas procedural law” so that Mr. Brown
could “pursue his 1997 state court appeal and give the state courts an opportunity
to determine the status of his direct appeal in the first instance.” Brown I, 177 F.
App’x at 779 (emphasis added); see also id. at 778 (“Kansas law may yet permit
Mr. Brown to docket the appeal.”).
5
Upon the filing of another habeas petition in 2007, the district court
(continued...)

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 Because Mr. Brown did not seek further review from the Supreme Court of

the United States, the one-year statutory period under § 2244(d)(1) would have

5
(...continued)
concluded, and we agreed, that Mr. Brown had a limited possibility of reopening
his appeal under the doctrine articulated by the Kansas Supreme Court in State v.
Ortiz, 640 P.2d 1255 (Kan. 1982). See Brown, No. 07-3227-SAC, 2009 WL
352867, at *2; Brown II, 336 F. App’x at 783. On return to state court, however,
the Chief Deputy Clerk of the Kansas Appellate Courts sent Mr. Brown a letter
informing him that nothing further could be filed in the matter as his appeal was
closed as of June 21, 2007. Indeed, Mr. Brown concedes that he was denied the
opportunity to reopen his appeal under Ortiz. See R. at 23 (Pet’r’s Aff. Supp. Pet.
for Writ of Habeas Corpus, filed Nov. 16, 2009) (“I[] was denied exception under
[the] Ortiz Rule[.]”).

In Jimenez, the Supreme Court considered whether a state-court order
granting a defendant the opportunity to file an out-of-time appeal renders his
judgment “non-final” for purposes of § 2244(d)(1)(A). 555 U.S. at 119–21.
Relying on the plain language of § 2244(d)(1)(A), the Court concluded that it did
because “the finality of a state-court judgment is expressly defined by statute as
‘the conclusion of direct review or the expiration of the time for seeking such
review.’” Id. at 119 (quoting § 2244(d)(1)(A)). Inasmuch as an order reopening
direct review before a petitioner seeks federal habeas relief is an acknowledgment
that direct review has not in fact concluded, the relevant “judgment is not yet
‘final’ for purposes of § 2244(d)(1)(A).” Id. at 121. The underlying decision in
Brown II was an affirmative recognition that Mr. Brown could possibly obtain the
right to file an out-of-time direct appeal—thus reopening direct review. See
Brown II, 336 F. App’x at 782 (acknowledging that the Kansas courts denied Mr.
Brown the opportunity to docket his direct appeal out of time). However, Mr.
Brown did not obtain an order reopening direct review, and therefore was not
“grant[ed] . . . the right to file an out-of-time direct appeal.” Jimenez, 555 U.S. at
121. Consequently, “the possibility that [Kansas] court[s] [could] reopen direct
review ‘d[id] not render convictions and sentences that are no longer subject to
direct review nonfinal.’” Id. at 120 n.4 (emphasis added) (quoting Beard v.
Banks, 542 U.S. 406, 412 (2004)). That is, the fact that a possibility to reopen
review of a conviction exists does not imply that the conviction cannot be viewed
as final if there is no other means for the petitioner (Mr. Brown) to reinstate
direct review. See id.

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begun on the expiration of “the time for filing a certiorari petition,” see Jimenez,

555 U.S. at 119 (quoting Clay v. United States, 537 U.S. 522, 527 (2003))

(internal quotation marks omitted); Woodward, 693 F.3d at 1292—that is, ninety

days later, on September 19, 2007, see Woodward, 693 F.3d at 1292; Harris v.

Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011) (suggesting that convictions

become final “when the ninety-day time period for filing a certiorari petition with

the United States Supreme Court expire[s].”). This date is indisputably “the date

on which [Mr. Brown’s] judgment became final” because it established that Mr.

Brown no longer had the opportunity, in the ordinary course, to proceed with his

appeal. See 28 U.S.C. § 2244(d)(1) (“The limitation period shall run from . . .

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review . . . .” (emphasis

added)); see also Jimenez, 555 U.S. at 119 (“[D]irect review cannot conclude for

purposes of § 2244(d)(1)(A) until the ‘availability of direct appeal[’] . . . has been

exhausted.” (citations omitted) (quoting Caspari v. Bohlen, 510 U.S. 383, 390

(1994))). 6 Accordingly, the one year limitations period began on September 20,

6
The fact, as the district court suggested, that a Kansas state district
court may have granted Mr. Brown the right to docket his appeal out of time does
not change the ultimate denial of his request by the Kansas appellate courts,
which established the date Mr. Brown’s conviction was no longer subject to direct
review under § 2244(d)(1)(A). That is, Mr. Brown’s state appeal is no longer in
“appellate limbo,” see Brown I, 177 F. App’x at 777, as the Kansas appellate
courts have rendered a final decision refusing him the opportunity to docket his
(continued...)

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2007, see Hurst, 322 F.3d at 1260–61, and Mr. Brown would have had until

September 20, 2008 to file his federal habeas petition.

C

Nonetheless, turning to the issue of statutory tolling, it is apparent from the

record before us that on May 6, 2004, Mr. Brown filed a motion to correct illegal

sentences with respect to both his 1981 and 1997 convictions in the Sedgwick

County District Court. Brown, 2008 WL 1946822, at *1. Similarly, he filed a

“motion for arrest of judgment” in the same court on August 5, 2004. See id.

“The limitation period [under § 2244(d)(1)] is tolled for ‘[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.’” Sigala, 656 F.3d at

1127 (second alteration in original) (quoting § 2244(d)(2)); see Woodward, 693

F.3d at 1292.

The state district court denied both of Mr. Brown’s motions, construing the

first as a collateral attack on his convictions raised under K AN . S TAT . A NN . § 60-

1507. See Brown, 2008 WL 1946822, at *1. On May 2, 2008, the Kansas Court

of Appeals affirmed the district court, finding that Mr. Brown had waived many

of his arguments, and, even if he had properly presented them, they would likely

6
(...continued)
appeal out of time. From our review of Kansas law, there does not appear to be
any other means for him to receive direct review.

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have been unsuccessful on the merits. See id. at *1–2. The Kansas Supreme

Court denied review of Mr. Brown’s appeal from the Kansas Court of Appeals’s

order on July 2, 2008. Thus, because Mr. Brown participated in relevant

collateral proceedings attacking his conviction during a substantial portion of the

period during which his statutory limitations clock otherwise would have been

ticking, the one-year limitations period must be partially tolled. See 28 U.S.C. §

2244(d)(2) (“The 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 under

this subsection.”).

While it is less than clear from the record, the respondent concedes that Mr.

Brown raised the same claims in the latter proceedings as he now does in the

instant federal habeas petition. See Aplee. Br. at 12–13 (“At that time [i.e., when

Mr. Brown’s conviction went final in 2007], Petitioner had pending an appeal

from the denial of his 2004 post-conviction motions, so as the district court

found, the federal statute of limitations was immediately tolled.”). Thus, the one-

year clock was tolled until the close of Mr. Brown’s state collateral proceedings.

In this case, those proceedings—initially filed on May 6, 2004—concluded on

July 2, 2008, when the Kansas Supreme Court denied review of Mr. Brown’s

appeal from the Court of Appeals’s dismissal of his collateral motions, and the

one-year AEDPA limitations period could not be tolled further for purposes of

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seeking discretionary review from the U.S. Supreme Court. See Lawrence v.

Florida, 549 U.S. 327, 332 (2007) (“[An] application for state postconviction

review is . . . not ‘pending’ after the state court’s postconviction review is

complete, and § 2244(d)(2) does not toll the 1-year limitations period during the

pendency of a petition for certiorari.”). We must therefore add the number of

days Mr. Brown’s collateral proceedings were pending to the end of the

presumptive statutory limitations period. See Dinwiddie, 642 F.3d at 906 n.6

(conducting the analysis in a similar fashion). In this case, the collateral

proceedings were pending for 286 days of the one-year limitations period.

Extending the limitations period an additional 286 days from September 20,

2008—the date it would have otherwise expired, see id.—we conclude that Mr.

Brown had to file his petition by July 2, 2009. 7 The instant petition was filed on

7
Mr. Brown’s 2007 petition—which, as noted above, was dismissed
without prejudice to permit him to attempt to reopen his appeal under Ortiz—was
filed during his state collateral proceedings. However, at that time, he seemingly
did not alert the district court to the pendency of any such collateral proceedings.
See Brown II, 336 F. App’x at 782 (“Mr. Brown does not suggest that he has
pursued any of his claims in state collateral proceedings.”). And he did not, at
least as apparent on the record before us, otherwise seek to preserve his federal
habeas rights while he returned to state court to reopen his appeal under Ortiz.
Cf. Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that a petitioner may
obtain a “stay and abeyance . . . when the district court determines there was good
cause for [his] failure to exhaust”); Fairchild v. Workman, 579 F.3d 1134, 1152
(10th Cir. 2009) (“When a petitioner raises a new claim in federal court that is not
barred on other procedural grounds, the federal court may, in appropriate
circumstance, hold the federal case in abeyance to allow the petitioner to take his
unexhausted claim back to state court for adjudication.”). Pro se litigants must
(continued...)

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November 16, 2009, over four months later. Thus, it was filed outside of the

AEDPA one-year limitations period and is therefore untimely.

Nor does this case merit the application of equitable tolling. Equitable

tolling is available only in “rare and exceptional circumstances.” Sigala, 656

F.3d at 1127 (quoting York, 314 F.3d at 527) (internal quotation marks omitted).

“[It] would be appropriate, for example, when a prisoner is actually innocent,

when an adversary’s conduct—or other uncontrollable circumstances—prevents a

prisoner from timely filing, or when a prisoner actively pursues judicial remedies

but files a defective pleading during the statutory period.” York, 314 F.3d at 527

(quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)) (internal

quotation marks omitted). Mr. Brown alleges no facts supporting the application

of equitable tolling, and after a thorough review of the record, we could find

none. For these reasons, no tolling applies.

7
(...continued)
follow the same procedural rules as parties represented by counsel and should be
equally aware of the gamut of their procedural options. See, e.g., Shrader v.
Biddinger, 633 F.3d 1235, 1249 n.9 (10th Cir. 2011) (“[P]ro se litigants must
follow the same rules of procedure that govern other litigants.”); Creative Gifts,
Inc. v. UFO, 235 F.3d 540, 549 (10th Cir. 2000) (“Although pro se litigants get
the benefit of more generous treatment in some respects, they must nonetheless
follow the same rules of procedure that govern other litigants.”). It is not “the
proper function of the district court to assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also United
States v. Viera, 674 F.3d 1214, 1216 n.1 (10th Cir. 2012) (even though courts
“liberally construe [a pro se litigant’s] filing[s] . . . [they] do not assume the role
of advocate”) (citation omitted) (internal quotation marks omitted).

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 III

For the foregoing reasons, we conclude that reasonable jurists could not

disagree with the district court’s procedural dismissal of Mr. Brown’s petition as

time barred. Accordingly, we DENY Mr. Brown’s request for a COA and

DISMISS this matter.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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