FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 30, 2020
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Christopher M. Wolpert
Clerk of Court
KENNETH A. DUNN,
Petitioner - Appellant,
v. No. 19-2208
(D.C. No. 1:18-CV-00289-KG-KBM)
KEN SMITH; ATTORNEY GENERAL (D. N.M.)
FOR THE STATE OF NEW MEXICO,
Respondents - Appellees.
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ORDER AND JUDGMENT*
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Before HARTZ, BALDOCK, and CARSON, Circuit Judges.
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On May 21 of this year this court entered an order granting a certificate of
appealability to Applicant Kenneth Dunn, permitting him to appeal from the district
court’s denial of his application under 28 U.S.C. § 2254. We held that the district court’s
ruling that the application was time-barred was infirm because it had not taken “into
consideration that in 2016 the state district court apparently granted Applicant the right to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
file an out-of-time appeal from his conviction,” which, in accordance with Jimenez v.
Quarterman, 555 U.S. 113 (2009), would postpone the date on which his conviction
became final for purposes of 28 U.S.C. § 2244(d)(1)(A). Order at 2. We directed
Respondent Ken Smith to file a response brief, which could be followed by a reply brief
of Applicant.
Respondent submitted a helpful and thorough brief setting forth the procedural
background and relevant law. Its principal argument for affirming dismissal of the
§ 2254 application was that Applicant’s petition for writ of habeas corpus submitted to
the New Mexico Supreme Court did not toll the § 2244 limitations period because it was
untimely. Applicant’s reply brief raised the concern that he was not appointed defense
counsel to represent him on appeal after the state district court granted him the right to
file an out-of-time appeal.
We continue to believe that the district court erred in its analysis of the timeliness
of Applicant’s § 2254 application. Perhaps further examination will lead to the
conclusion that the application was untimely under a proper analysis. But additional
exploration of the issue will be necessary, and we believe that that should be done by the
district court, which may well decide that appointment of counsel to represent Applicant
would be appropriate in the circumstances. If Respondent continues to press the
procedural ground for dismissal, at least two issues will need to be resolved: (1) Did the
New Mexico Supreme Court reject Applicant’s petition for writ of habeas corpus on the
ground that it was untimely, or did it decide to resolve the petition on the merits? and (2)
Was Applicant improperly denied the assistance of appointed counsel when he was
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granted the right to file an out-of-time appeal from his conviction? Of course, the
procedural issue can be bypassed if the district court determines that the application fails
on the merits.
Accordingly, we VACATE the order dismissing Applicant’s § 2254 application as
untimely and REMAND to the district court for further proceedings consistent with this
order and judgment. We DENY Applicant’s request for injunctive relief, which should
first be directed to the district court. We GRANT Respondent’s Motion to Supplement.
Entered for the Court
Harris L Hartz
Circuit Judge
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