FILED
United States Court of Appeals
Tenth Circuit
November 21, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARK ALEX KINKEAD,
Petitioner - Appellant,
No. 12-5126
v. (D.C. No. 4:09-CV-00247-JHP-PJC)
(N.D. Okla.)
JANE STANDIFIRD, Warden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
Mark Alex Kinkead, a state inmate appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition and two motions to supplement the record. Kinkead v.
Standifird, No. 09-CV-247-JHP-PJC, 2012 WL 2995667 (N.D. Okla. July 23,
2012). Because Mr. Kinkead 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 this
appeal.
Background
On August 14, 2003, Mr. Kinkead pleaded guilty to the crime of lewd acts
against a child, after former conviction of felony, and received a five-year
deferred sentence. R. 442. On January 4, 2007, the state court accelerated the
sentence finding Mr. Kinkead had violated the conditions of probation, and
sentenced him to life imprisonment with all but the first ten years suspended. R.
36. Mr. Kinkead appealed the acceleration, and on September 23, 2008, the
Oklahoma Criminal Court of Appeals (“OCCA”) affirmed. R. 184–89. Mr.
Kinkead then sought post-conviction relief, which was denied. R. 33. The OCCA
affirmed the denial on March 25, 2009. R. 33–35.
On April 28, 2009, Mr. Kinkead filed a federal habeas petition. R. 5. He
raised three grounds for relief: his criminal prosecution was barred by the statute
of limitations, Oklahoma was wrongly applying the 85% Rule 1 to his sentence,
and his imprisonment was a double jeopardy violation. R. 11–15. Mr. Kinkead
filed two motions to supplement the record, which the court granted, R. 255, 264,
382, and a third motion to supplement the record, which the court denied. R. 383,
460. Mr. Kinkead then filed two more motions to supplement the record (his
fourth and fifth) on December 8, 2011, and December 12, 2011. R. 461, 474. In
his fourth motion, he added that, at the time of his crime, he was not required to
register under the Oklahoma Sex Offender Registration Act (“OSORA”), and
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Under the 85% Rule, a person committing one of an enumerated list of
felonies and convicted of the offense “shall serve not less than eighty-five percent
(85%) of the sentence of imprisonment imposed within the Department of
Corrections.” Okla. Stat. tit. 21, § 12.1 (2011).
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thus, it was error to accelerate his sentence for violating the OSORA. R. 461. In
his fifth motion, he added that it was error to use his 1994 DUI conviction to
enhance his sentence because the conviction was more than ten years old. R. 474.
On July 23, 2012, the district court denied Mr. Kinkead’s habeas petition
and two pending motions. Kinkead, 2012 WL 2995667, at *9. The court found
that neither motion related back to the original petition, and absent grounds for
statutory or equitable tolling, the claims were time-barred under 28 U.S.C. §
2544(d)(1)(A). Id. at *3–4. On appeal, Mr. Kinkead contends that this was error
because (1) his fourth motion addressed grounds for which there was no relief
when he filed his petition, and (2) his fifth motion related back to his petition.
Aplt. Br. 18–23. As for the habeas petition, the court denied the first two grounds
for relief on the merits, and the third ground as procedurally barred. Kinkead,
2012 WL 2995667, at *5–8. Mr. Kinkead argues that reasonable jurists could
debate these issues. Aplt. Br. 25–26. Finally, Mr. Kinkead argues that the court
abused its discretion when (1) it denied his request for an evidentiary hearing, and
(2) a magistrate judge never issued a Report and Recommendation. Id. at 3, 23.
Discussion
A COA requires that an applicant make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). The movant must show “that
reasonable jurists could debate whether . . . the petition should have been
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resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (citation and internal quotation marks omitted). Where the district
court dismisses a § 2254 motion on procedural grounds, the movant must
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. Id.
Under AEDPA, a federal court cannot grant habeas relief to a state prisoner
on any claim that a state court resolved on the merits, unless (1) the state court’s
adjudication was contrary to or an unreasonable application of clearly established
federal law, or (2) the adjudication was based on an unreasonable determination
of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d).
We presume that the state court’s determination of a factual issue is correct; the
petitioner has the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
A. Motions to Supplement the Record
Section 2244 contains a one-year limitations period which runs from the
date a conviction is deemed final. 28 U.S.C. § 2244(d)(1). Mr. Kinkead’s
conviction became final on December 23, 2008, when the ninety days to seek
certiorari review in the United States Supreme Court expired. 28 U.S.C. §
2101(c). However, prior to that date, Mr. Kinkead filed an application for post-
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conviction relief, which tolled the one-year period until March 26, 2009, the day
after the OCCA affirmed the denial of his application. 28 U.S.C. § 2244(d)(2).
He therefore had until March 26, 2010, to file a habeas petition. Mr. Kinkead’s
original petition, filed on April 28, 2009, was timely, but his fourth and fifth
motions to supplement the record, both filed in December 2011, were untimely.
To overcome this untimely filing, the motions must relate back to the
original petition, or statutory or equitable tolling must be appropriate. A claim
that is “totally separate and distinct, in both time and type from those raised” in
the original petition does not relate back. United States v. Espinoza-Saenz, 235
F.3d 501, 505 (10th Cir. 2000) (quotation omitted). The pendency of a federal
habeas case does not toll the limitations period. See 28 U.S.C. § 2244(d)(2).
Finally, for equitable tolling to apply, the movant 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. Holland v. Florida, 130 S. Ct. 2549, 2562
(2010). As the district court found, Mr. Kinkead’s motions, which challenged the
acceleration of his sentence, raised new claims that were unrelated to his petition.
Likewise, neither statutory nor equitable tolling was appropriate because the
federal habeas case did not toll the period, and Mr. Kinkead did not exercise
reasonable diligence in pursuing these claims. To the extent Mr. Kinkead
contends that he only discovered the grounds for his fourth motion—that he was
not subject to the OSORA—after he filed his petition, we reject this claim
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because this was a basis the state claimed to accelerate his sentence. See R. 184
n.1. We do not believe that reasonable jurists could debate these conclusions.
B. Grounds for Habeas Relief
1. Ground One
Mr. Kinkead first argues that his criminal prosecution was barred by the
statute of limitations. Aplt. Br. 8. He claims that his Judgment and Sentence
provides that the crime charged was committed on or about June 9, 1995, but the
Information was not filed until February 7, 2003, which is beyond the five-year
statute of limitations period for the offense. The OCCA rejected this claim,
finding that the Information charged criminal conduct between June 9, 1995 and
July 2, 1998, and therefore, was timely filed on February 7, 2003. On appeal, Mr.
Kinkead argues that the OCCA decision is not on the merits, and thus not entitled
to AEDPA deference, because the OCCA did not consider the Judgment and
Sentence in reaching its decision. Id. at 12. We disagree.
As an initial matter, Mr. Kinkead raises a question of state law. As a
federal habeas court, we do not review violations of state law. We are limited to
determining whether a conviction violated the Constitution, laws, or treatises of
the United States. 28 U.S.C. § 2254(a). We also find that the OCCA adjudicated
this claim on the merits, even without the Judgment and Sentence, because it
relied on the Information in finding that the charge was timely filed. R. 34.
Moreover, Mr. Kinkead has not established that the OCCA’s decision was
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unreasonable “in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2). We find that reasonable jurists could not fairly debate
this conclusion.
2. Ground Two
Mr. Kinkead next argues that Oklahoma is applying his sentence in
violation of the Constitution by denying him earned credits. Aplt. Br. 2, 15–17.
We note that this is a slight variation of the claim Mr. Kinkead raised in his
habeas petition, where he alleged that he was wrongly subject to Oklahoma’s 85%
Rule. Mr. Kinkead now contends that his sentence, “life imprisonment with all
but the first ten years suspended,” is not life sentence, and therefore, Okla. Stat.
tit. 57, § 138(A), which prevents those inmates serving life sentences from
earning credits, does not apply to him. Id. As the district court found, Mr.
Kinkead is serving a sentence of life imprisonment, even though all but the first
ten years were deferred. Kinkead, 2012 WL 2995667, at *7. We do not believe
that reasonable jurists could fairly debate this conclusion.
3. Ground Three
Mr. Kinkead’s third ground for relief is that his imprisonment is a double
jeopardy violation. The district court denied this claim as procedurally barred,
finding neither “cause and prejudice” nor a “fundamental miscarriage of justice”
to excuse the default. Id. at *7–8. As an initial matter, it is not clear whether Mr.
Kinkead seeks a COA on this ground. Mr. Kinkead only refers to this point in the
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opening paragraph of his brief when he states that he appeals the “judgment
denying on ‘procedural grounds’ any federal habeas corpus relief under 28 U.S.C.
sec. 2254.” Aplt. Br. 1. However, construing this pro se pleading liberally, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), we will assume that he seeks a COA
on this basis as well. Nonetheless, we find that a COA is not warranted because
Mr. Kinkead has failed to demonstrate that it is reasonably debatable whether the
court’s procedural ruling is correct. See Slack, 529 U.S. at 484.
The district court found that Mr. Kinkead’s double jeopardy claim was
procedurally barred because he failed to raise this claim on direct appeal. The
court rejected Mr. Kinkead’s argument that he had in fact raised this claim,
finding that Mr. Kinkead asserted a different double jeopardy argument on direct
appeal. Kinkead, 2012 WL 2995667, at *7 n.6. On direct appeal, Mr. Kinkead
argued that the acceleration of his sentence subjected him to double jeopardy
because it was based on violations for which his probation officer had already
punished him. However, in his habeas petition, Mr. Kinkead argued that the
double jeopardy violation was his current imprisonment after serving two years of
a deferred sentence. Id. We do not believe that reasonable jurists could debate
the court’s conclusion that these are different claims, and that Mr. Kinkead’s
current double jeopardy claim is procedurally barred.
Nor do we find that “cause and prejudice” exists for the default or that a
“fundamental miscarriage of justice” will result if Mr. Kinkead’s claim is not
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considered. We note that Mr. Kinkead does not address this point on appeal, and
like the district court, we find that Mr. Kinkead has failed to show any reason to
excuse the default.
C. Abuse of Discretion Claims
Mr. Kinkead raises two additional arguments in his brief. He first argues
that the district court abused its discretion in denying his request for an
evidentiary hearing. Aplt. Br. 23. In so asserting, Mr. Kinkead contends that “his
claimed constitutional violations . . . require an evidentiary hearing by due
process to prove or disprove the set of facts that he challenges that his
confinement as unlawful. Id. “A district court’s decision to grant or deny an
evidentiary hearing in a habeas proceeding is reviewed for an abuse of
discretion.” Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010) (quotation
omitted). Because each of Mr. Kinkead’s claims can be resolved on the basis of
the record alone, the district court did not abuse its discretion.
Mr. Kinkead then argues that the district court abused its discretion when
his case was assigned to a magistrate judge, but the magistrate never issued a
report and recommendation. Aplt. Br. 3. We find nothing in the docket sheet to
indicate that this case was assigned to a magistrate. R. 1–4. As such, we do not
find that the district court abused its discretion in deciding the matter without the
assistance of a magistrate judge.
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We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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