FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 1, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-3299
v. (D.C. No. 2:00-CR-20056-CM-1)
(D. Kan.)
HENRY JOHNSON,
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Henry Johnson II, a federal inmate appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. Johnson v. United
States, No. 00–20056–1–CM, 2011 WL 3880854 (D. Kan. Sept. 2, 2011). After
the district court rejected his motion as time-barred, Mr. Johnson filed an
application to file a second or successive § 2255 motion in this court raising the
same issues. 28 U.S.C. § 2255(h). A panel of this court denied authorization, but
directed the Clerk to treat Mr. Johnson’s application as a misdirected notice of
appeal. In re Johnson, No. 11-3287 (10th Cir. Oct. 7, 2011). Because Mr.
Johnson has not made “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.
Mr. Johnson was convicted in 2001 upon a guilty plea of robbery affecting
interstate commerce and aiding and abetting, 18 U.S.C. §§ 1951 and 2, and using
and carrying a firearm during and in relation to a crime of violence and aiding
and abetting, 18 U.S.C. §§ 924(c) and 2. He robbed a Montgomery Ward store in
Kansas City, Kansas, with a shotgun. He does not deny that he committed the
robbery but alleges that “no interstate commerce nexus connection has been
shown to exist.” Aplt. Br. 5. He also claims his sentence was incorrectly
calculated under the guidelines. Id. at 8-10. His interstate-commerce argument
was rejected on direct appeal. United States v. Johnson, 18 Fed. Appx. 765 (10th
Cir. 2001).
A one-year statute of limitations applies to habeas claims under 28 U.S.C.
§ 2255. For Mr. Johnson this period expired on February 16, 2002, one year from
the date on which the Supreme Court made the judgment “final” by denying his
petition for a writ. 28 U.S.C. § 2255(f)(1). For equitable tolling to apply,
Holland v. Florida, 130 S. Ct. 2549 (2010), petitioner must show (1) that he has
been “pursuing his rights diligently” and (2) that “some extraordinary
circumstance stood in his way” to prevent timely filing. Id. at 2562. Mr. Johnson
alleges no such circumstance, nor does he explain why this writ is being sought
nearly a decade after his conviction became final.
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Where a district court dismisses a § 2255 motion on procedural grounds, a
COA requires the movant to demonstrate that it is reasonably debatable whether
(1) the motion states a valid claim of the denial of a constitutional right and (2)
the district court’s procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473,
484 (2000). The district court’s ruling concerning the time bar is not reasonably
debatable. We need not address whether Mr. Johnson’s substantive claims pose
reasonably debatable issues. Id.
We DENY a COA, DENY IFP status, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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