FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 10, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOHN D. BEVAN,
Petitioner - Appellant,
No. 16-4137
v. (D.C. No. 2:13-CV-00624-TC)
(D. Utah)
STATE OF UTAH,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and MORITZ, Circuit Judges.
Petitioner-Appellant John D. Bevan, a state inmate appearing pro se, seeks
a certificate of appealability (“COA”) to appeal from the district court’s dismissal
of his habeas corpus petition. 28 U.S.C. § 2254. To receive a COA, Mr. Bevan
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see also Miller–El v. Cockrell, 537 U.S. 322, 337 (2003).
Because the district court denied his petition on a procedural ground (time-bar),
Mr. Bevan must show that “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). We hold that the district court’s decision that the petition is
time-barred is not reasonably debatable. Therefore, we deny a COA and dismiss
the appeal.
Mr. Bevan entered a guilty plea to first-degree murder, and was sentenced
on April 1, 2008. He did not appeal within the thirty-day time limit. Utah. R.
App. P. 4(a). In 2010, Mr. Bevan unsuccessfully sought post-conviction relief
through the Utah state court system. He filed his federal habeas petition in July
2013, claiming that (1) he did not have the requisite mental state to commit first-
degree murder, (2) he has discovered new evidence, (3) his plea was made
involuntary and unknowingly, (4) he was involuntarily intoxicated, (5) he was
incapable of helping counsel in his own defense, (6) his Miranda rights were
violated, and (7) ineffective assistance of counsel. 1 R. 5–21.
The statute provides: “A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2244(d)(1). In this case, the one-year
period started to run either from “the date on which the judgment became final by
. . . the expiration of the time for seeking [direct] review,” id. § 2244(d)(1)(A), or
“the date on which the factual predicate of the . . . claims presented could have
been discovered through the exercise of due diligence,” id. § 2244(d)(1)(D).
Mr. Bevan was sentenced on April 1, 2008. His judgment became final
under § 2244(d)(1)(A) thirty days later on May 1, 2008, when he could no longer
appeal. Mr. Bevan claims that he discovered new evidence related to his claims
soon after he was sentenced, on April 1, 2008. It is unclear exactly when Mr.
-2-
Bevan allegedly discovered the new evidence, but the latest date Mr. Bevan could
have filed his habeas petition is likely on or around May 1, 2009. His habeas
petition was filed in July 2013, more than four years too late.
Although pursuing state post-conviction relief tolls the statute of
limitations for filing a federal habeas petition, 28 U.S.C. § 2244(d)(2), Mr. Bevan
did so in 2010, well after the one-year statute of limitation had already expired.
Tolling, of course, does not restart the clock; it only pauses it. See Vroman v.
Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
Mr. Bevan has not shown any previous effort to file a habeas petition, and
has not alleged any extraordinary circumstances that kept him from doing so. See
Holland v. Florida, 560 U.S. 631, 649 (2010). He therefore does not qualify for
equitable tolling. See id.
Accordingly, we DENY a COA, DENY and DISMISS his appeal.
Appellant’s motion to proceed in forma pauperis is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-