Love v. Schnurr

Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 23, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
LEVI LOVE,

Petitioner - Appellant,

v. No. 23-3150
(D.C. No. 5:22-CV-03276-JWL)
DAN SCHNURR, Warden, Hutchinson (D. Kan.)
Correctional Facility,

Respondent - Appellee.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________

Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges.
_________________________________

Levi Love, a state inmate proceeding pro se, seeks a Certificate of

Appealability (COA) to appeal the district court’s denial of his 28 U.S.C.

§ 2241 petition. For the reasons explained below, we deny Love a COA.

BACKGROUND

Love was convicted of first-degree murder and attempted first-degree

murder for shooting two people and killing one. The trial court sentenced Love

to life imprisonment on the murder charge and 68 years’ imprisonment on the

*
This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 23-3150 Document: 010111004657 Date Filed: 02/23/2024 Page: 2

attempted murder charge, with those sentences running concurrently. At

sentencing, the trial court noted that Love would have to serve 25 years before

he was eligible for parole on his life sentence. The Kansas Supreme Court

affirmed his convictions on direct review. State v. Love, 986 P.2d 358, 365

(Kan. 1999).

Love then petitioned for post-conviction relief in Kansas state court,

raising claims for ineffective assistance of counsel and claiming that newly

discovered evidence warranted a new trial. After the Kansas trial court denied

his petition and the Kansas Court of Appeals affirmed, Love petitioned the

federal district court for the same relief under 28 U.S.C. § 2254. The district

court denied his petition, and we denied a COA. Love v. Roberts, 259 F. App’x

58, 59 (10th Cir. 2007) (unpublished).

Over a decade later, Love filed another petition for post-conviction relief

in Kansas state court. Love petitioned for relief because, according to him, the

Kansas Department of Corrections (DOC) was illegally forcing him to serve his

68-year sentence. More specifically, Love argued that his life-imprisonment

sentence should control when he is eligible for parole because it is longer than

his sentence for 68 years. Because Kansas allows some prisoners serving life

sentences to be eligible for parole after twenty-five years, Love asserted that

the DOC was illegally denying him eligibility for parole by listing his 68-year

sentence as the sentence that “controlled [his] prison term and postrelese [sic]

supervision.” R. 178. Thus, Love maintains that he should not have to serve his

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68-year sentence. The trial court rejected his petition, and the Kansas Court of

Appeals affirmed. Love v. Schnurr (State Appeal), 481 P.3d 193, 2021 WL

745418, at *5 (Kan. Ct. App. 2021) (unpublished table decision). The Kansas

Court of Appeals ruled that Love’s petition was procedurally barred because

Love had exhausted his administrative remedies too late. Id. at *4. To exhaust

his administrative remedies, Love needed to file a grievance with the warden

“within 15 days from the date of the discovery of the event giving rise to the

grievance.” Kan. Admin. Regs. § 44-15-101b; see id. § 44-15-102(b). And

“[n]o grievance, regardless of time of discovery, shall be filed later than one

year after the event.” Id. § 44-15-101b. Had he exhausted his administrative

remedies by filing a timely grievance, Love would then have had 30 days to file

a habeas petition. Kan. Stat. Ann. § 60-1501(b). The Kansas Court of Appeals

found that Love first learned of the allegedly illegal change to his sentence in

2014 but waited to file a grievance until July 2018. State Appeal, 2021 WL

745418, at *4. So the court dismissed Love’s petition because his untimely

grievance served as a jurisdictional bar to judicial review. Id.

The court also rejected the merits of Love’s argument by ruling that

parole “is entirely discretionary . . . and might never be granted.” Id. at *2

(citing Kan. Stat. Ann. § 21-6821). The court explained that “even if Love was

paroled on his life sentence, he would not be released [from prison] until he has

served a total of 816 months (68 years) on his other concurrent sentence.” Id.

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Thus, the court noted, whatever sentence the DOC listed as “Love’s controlling

sentence appears, on its face, to be of academic interest only.” Id.

Given that ruling, Love brought another petition in federal court, this

time under 28 U.S.C. § 2241. In this petition, Love challenged his parole-

eligibility status, cabining his arguments to four legal theories: (1) deprivation

of a “[p]rotected liberty interest . . . without due process,” (2) “[v]iolation of

the Double Jeopardy Clause and § 10 of the Kansas Bill of Rights,”

(3) violation of Kansas procedural statutes for his procedural default in state

court, and (4) fraud and libel against the DOC for denying him parole. R. 12–

13. The district court denied Love’s petition, finding it procedurally barred and

rejecting it on the merits. Love v. Schnurr (Court Order), No. 22-3276, 2023

WL 4295368, at *5–7 (D. Kan. June 30, 2023). Love now seeks a COA to

challenge the district court’s denial of his § 2241 petition.

STANDARD OF REVIEW

Love must obtain a COA before we can address the merits of his habeas

petition, as it is a jurisdictional prerequisite to our review. See Montez v.

McKinna, 208 F.3d 862, 867–69 (10th Cir. 2000). We deny an applicant’s COA

“if no reasonable jurist would find it debatable that his application (1) fails to

state a valid constitutional claim or (2) is procedurally barred.” Winn v. Cook,

945 F.3d 1253, 1257 (10th Cir. 2019).

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DISCUSSION

We first determine the scope of our review, and then we consider the

merits of Love’s application.

I. Scope of Review

The district court entered judgment denying Love’s § 2241 petition on

June 30, 2023, but Love filed his notice of appeal on August 22, 2023—after

the 30-day appellate deadline passed. 1 See Fed. R. App. P. 4(a)(1)(A) (requiring

appellants to file notice of appeal within 30 days of final judgment unless a

motion is filed that tolls the deadline). Yet he timely filed two motions in the

district court before the deadline passed—a motion under Rule 59(e) on July 7,

and a “motion for rehearing” on July 27. R. 4. The district court denied those

motions on July 10 and July 28, respectively. We know that the Rule 59(e)

motion tolls the appellate deadline. See Fed. R. App. P. 4(a)(4)(A)(iv). So the

30-day clock began to run when the motion was denied on July 10, unless the

motion for rehearing is likewise tolling: then the clock would have started on

July 28. If the motion for rehearing is not tolling, our review is limited to the

denial of that motion; but if it is tolling, then we can review the merits of the

district court’s denial of Love’s § 2241 petition. Cf. Lebahn v. Owens, 813 F.3d

1300, 1304–05 (10th Cir. 2016).

1
At the bottom of the notice of appeal, Love (or someone) handwrote,
“filed 8-2-23; refiled 8-22-23.” R. 521. Nothing in the record shows that the
notice was indeed originally filed on August 2, 2023. So we take August 22,
2023, as the official filing date for Love’s notice of appeal.
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No matter what it is titled, a motion tolls the time to file an appeal under

Rule 59(e) “if it is served within the specified time period and seeks relief

appropriate to Rule 59(e) by questioning the correctness of the underlying

judgment.” See Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997,

1004 (10th Cir. 2017). Though called a motion for rehearing, Love’s motion

satisfies both the timing and substance requirements for us to treat it as tolling.

For timing, Love filed the motion for rehearing within 28 days after the district

court entered judgment—the judgment was entered June 30; the motion for

rehearing was filed July 27. For substance, the motion for rehearing

“question[s] the correctness of the underlying judgment” by arguing that the

DOC illegally changed Love’s sentence. See id. Given the timing and substance

of the motion, we construe Love’s motion for rehearing as a tolling motion

under Rule 4. And so, we proceed to the merits.

II. Merits

As a state prisoner seeking appellate review of the dismissal of his

§ 2241 petition, Love must first obtain a COA. See Montez, 208 F.3d at 867–69.

To do so, Love must show that “jurists of reason would find it debatable”

(1) “whether the petition states a valid claim of the denial of a constitutional

right” and (2) “whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In his opening brief, Love argues

that the district court erred by denying his habeas petition and declining to hold

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an evidentiary hearing. He also argues that the district court judge “should have

recused himself.” Op. Br. at 4. We consider each in turn.

A. Denial of Habeas Petition

The district court denied Love’s habeas petition on procedural grounds

and on the merits. Court Order, 2023 WL 4295368, at *4–6. So Love must

show that reasonable jurists would debate whether his “petition states a valid

claim of the denial of a constitutional right” and whether the district court erred

in its procedural ruling. Slack, 529 U.S. at 484.

1. Constitutional Claims

In Love’s habeas petition, he raises claims based on purported

constitutional and state-law violations. But his “claims of state law violations

are not cognizable in a federal habeas action.” Montez, 208 F.3d at 865. So we

only address his federal constitutional claims, of which there are two.

Love claims that the DOC violated the Due Process and Double Jeopardy

Clauses by changing his sentence and denying him parole eligibility. To

support his claims, Love argues that his life-imprisonment sentence should

control when he receives parole and that he should be eligible for parole

because he has served over 25 years of his life sentence. Thus, Love asserts that

the DOC is illegally forcing him to serve his 68-year sentence by declining to

grant him parole.

To start, Love has not stated a valid Due Process violation. To show a

Due Process violation, Love must show that he was deprived of a protected

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liberty interest. Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 569–70

(1972). Because there is “no constitutional or inherent right to receive parole,”

federal law does not create a liberty interest in parole. Malek v. Haun, 26 F.3d

1013, 1015 (10th Cir. 1994). So to succeed, Love must show that Kansas law

creates a liberty interest in parole. See id. But “as the Kansas Supreme Court

and panels of this court have held, the Kansas parole statute does not create a

liberty interest as would be required to maintain a due-process claim.” Heath v.

Norwood, 772 F. App’x 706, 708 (10th Cir. 2019) (unpublished) (citing

Gilmore v. Kansas Parole Bd., 756 P.3d 410, 415 (Kan. 1988)). Thus,

reasonable jurists would not debate whether Love has stated a Due Process

claim.

Likewise, Love has not validly claimed a Double Jeopardy Clause

violation. The Double Jeopardy Clause protects defendants against three

separate constitutional violations: “(1) a second prosecution for the same

offense after acquittal, (2) a second prosecution for the same offense after

conviction, and (3) multiple punishments for the same offense.” Anderson v.

Mullin, 327 F.3d 1148, 1153 (10th Cir. 2003) (cleaned up). In one prosecution,

Love was convicted of two offenses—murder in the first degree and attempted

murder in the first degree. And he was sentenced to one punishment for each

offense: life imprisonment for murder and 68 years’ imprisonment for

attempted murder. Though Love was denied parole eligibility, his sentence has

not changed. See Carroll v. Simmons, 89 F. App’x 658, 663 (10th Cir. 2004)

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(“Because the denial of parole does not change the length of a prisoner’s

sentence, it is not the imposition of more than one punishment for the same

offense as prohibited by the double jeopardy clause.” (citation omitted)). And

even if he were eligible for parole for his life-imprisonment sentence, Love’s

68-year sentence is a separate sentence for a separate offense, not a subsequent

“punishment[] for the same offense.” Anderson, 327 F.3d at 1153. Thus, Kansas

can force Love to serve his 68-year sentence without offending the Double

Jeopardy Clause. As a result, reasonable jurists would not debate whether Love

has stated a claim for the denial of a constitutional right.

2. Procedural Default

The district court ruled that Love’s claims were procedurally barred

because his habeas petition in state court was dismissed on state procedural

grounds. See Court Order, 2023 WL 4295368, at *4–5. The district court also

found that Love had not shown good cause and prejudice to excuse the

procedural default. Id. at *5. As explained below, reasonable jurists would not

debate this conclusion.

“When a state court dismisses a federal claim on the basis of

noncompliance with adequate and independent state procedural rules, federal

courts ordinarily consider such claims procedurally barred and refuse to

consider them.” Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012)

(citing Clayton v. Gibson, 199 F.3d 1162, 1170–71 (10th Cir. 1999)). A state

procedural rule is adequate if it is “firmly established and regularly followed.”

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Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558

U.S. 53, 60–61 (2009)). A state procedural ruling is independent if “it relies on

state law, rather than federal law.” Black v. Workman, 682 F.3d 880, 918 (10th

Cir. 2012) (quoting Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008)).

The Kansas Court of Appeals dismissed Love’s case because he failed to

timely file a grievance. See State Appeal, 2021 WL 745418, at *4–5 (citing

Kan. Admin. Regs. § 44-15-101b). This state procedural ruling is adequate

because the time limits in § 44-15-101b have been firmly established and

regularly followed by Kansas courts. See, e.g., Walling v. Riggin, 350 P.3d

1138, 2015 WL 3875085, at *4 (Kan. Ct. App. 2015) (unpublished table

decision); Beauclair v. Heimgartner, 345 P.3d 296, 2015 WL 1514255, at *3–4

(Kan. Ct. App. 2015) (unpublished table decision); Thomas v. McKune, 303

P.3d 727, 2013 WL 3455828, at *3 (Kan. Ct. App. 2013) (unpublished table

decision). The Kansas Court of Appeals’ ruling is also independent because it

relied exclusively on state procedural rules and not any federal law. See State

Appeal, 2021 WL 745418, at *4–5.

A state procedural default nonetheless may be excused if the petitioner

can show “cause and prejudice” or a “fundamental miscarriage of justice.”

Tyron v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (citation omitted). To

show cause, a petitioner must demonstrate that “something external to the

petitioner, something that cannot fairly be attributed to him, impeded his

efforts to comply with the State’s procedural rule.” Id. (quoting Maples v.

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Thomas, 565 U.S. 266, 280 (2012)). The petitioner then must show “not merely

a substantial federal claim, such that the errors at trial created a possibility of

prejudice, but rather that the constitutional violation worked to his actual and

substantial disadvantage.” Shinn v. Ramirez, 596 U.S. 366, 379 (2022) (cleaned

up). To show a fundamental miscarriage of justice, a petitioner must make a

credible claim of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392

(2013). The actual-innocence exception “is a markedly narrow one” that is

“implicated in extraordinary cases where a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Magar v. Parker,

490 F.3d 816, 820 (10th Cir. 2007) (cleaned up).

First, Love has not shown cause and prejudice because he has not claimed

that “something external” prevented him from complying with § 44-15-101b.

See Tyron, 81 F.4th at 1139 (emphasis omitted). Instead, he argues that he

discovered the allegedly illegal change to his sentence on October 5, 2017, and

filed a grievance on July 27, 2018. Because one year had not passed, he argues

that his grievance was timely. But even if Love first discovered the alleged

change in October 2017, his grievance was still barred by § 44-15-101b. That

regulation requires prisoners to file a grievance “within 15 days from the date”

of discovery and mandates that “[n]o grievance, regardless of time of

discovery, shall be filed later than one year after the event.” Section 44-15-

101b; see also Van Houten v. Marlett, 330 F. App’x 161, 163 (10th Cir. 2009)

(unpublished) (“Thus, the sentence permitting filing up to ‘one year after the

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event’ is an additional limit on the filing time, not an extension.”). So if Love

discovered the allegedly illegal change on October 5, 2017, then he had 15 days

from that date to file a grievance. And even if he did file within 15 days, then

his grievance would still be untimely if it was filed more than a year after the

DOC allegedly changed his sentence. See id. Thus, Love has not shown cause

to excuse his default.

Second, Love also has not shown a fundamental miscarriage of justice

because he has not made a credible claim for actual innocence. At Love’s trial,

the state showed that the victim identified Love as the shooter in a pretrial

photo lineup. Now, Love argues that the victim lied to the police and falsely

identified Love. To support his claim, Love has produced an affidavit from the

victim in which the victim testifies that he lied to the police and falsely

identified Love. Love has also produced affidavits from other people who have

heard the victim say that he falsely identified Love in the lineup. But Love’s

recanted-identification evidence is not enough. In general, courts disfavor

recantations as the basis for actual innocence claims because “recanted

testimony is notoriously unreliable, ‘easy to find but difficult to confirm or

refute: . . . witnesses with personal motives change their stories many times,

before and after trial.’” Case v. Hatch, 731 F.3d 1015, 1044 (10th Cir. 2013)

(citation omitted). We need not speculate about the victim’s personal motive

for recanting here because he explains it in his affidavit. The victim testifies,

“The only reason why I am telling the truth in this affidavit is to get even with

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the court for giving my nephew . . . a life sentence after [the state] had used me

to convict Levi Love.” Suppl. R. 10. The victim also notes that, if Love gets a

new trial, the victim will testify for the state—and against Love again—but

only if the state “give[s] [his] nephew a new trial, or some type of deal.” Id.

Because the victim is leveraging his recantation to help his nephew, Love has

not made the “credible” showing necessary to prove actual innocence. 2 See

McQuiggin, 569 U.S. at 392.

Because Love has failed to show cause and prejudice or a fundamental

miscarriage of justice, reasonable jurists would not debate the district court’s

procedural ruling.

B. Denial of Evidentiary Hearing

Love contends that the district court erred by not holding an evidentiary

hearing. “A habeas petitioner can obtain an evidentiary hearing in federal court

by (1) showing he was diligent in developing the factual basis for his claim in

state court; and (2) asserting a factual basis that, if true, would entitle him to

habeas relief.” Hanson v. Sherrod, 797 F.3d 810, 836 (10th Cir. 2015) (cleaned

2
Love also has not identified a constitutional violation that would have
resulted in his alleged wrongful conviction. See Herrera v. Collins, 506 U.S.
390, 400 (1993) (“Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal habeas relief absent
an independent constitutional violation occurring in the underlying state
criminal proceeding.”). As we have repeatedly noted, a claim of actual
innocence is not enough: it must be predicated on a constitutional violation for
us to grant relief. See, e.g., Farrar v. Raemisch, 924 F.3d 1126, 1134 (10th Cir.
2019) (“Actual innocence and false testimony by a private citizen do not entail
constitutional violations triggering habeas relief.”).
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up). As discussed above, Love has stated no claims that would entitle him to

habeas relief. Thus, the district court did not err by denying Love an

evidentiary hearing.

C. Recusal

Love argues that the district court judge should have recused himself

because the judge was involved in Love’s first habeas petition. During Love’s

first habeas petition, Love sent “correspondence” to the chief judge for the

District of Kansas—the same judge who presided over Love’s current § 2241

petition. R. 517. In that correspondence, Love “lodged a complaint about his

case.” Id. The then-chief responded in an order that “a chief judge does not

have express or implied authority to take action in litigation which has been

assigned to another judge of the court and remains pending before that judicial

officer.” Id. From this, Love argues that the district judge is “very much

interested in Mr. Love’s” current habeas petition. Op. Br. at 4.

Even if a judge does not have a personal bias in a proceeding, a judge

still must recuse himself when “his impartiality might reasonably be

questioned.” United States v. Wells, 873 F.3d 1241, 1250 (10th Cir. 2017)

(quoting 28 U.S.C. § 455(a)). This standard mandates recusal when a

reasonable person, knowing all the circumstances, “would harbor doubts about

the judge’s impartiality.” Id. at 1251 (citation omitted). But “adverse rulings

cannot in themselves form the appropriate grounds for disqualification.” Id. at

1252 (citation omitted).

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No reasonable person would “harbor doubts” about the district court

judge’s impartiality here. See id. at 1251 (citation omitted). The district court

judge’s only involvement in Love’s prior habeas petition was the judge’s

entering an order that explained why he lacked authority to address Love’s

complaints. Because “adverse rulings cannot in themselves form the appropriate

grounds for disqualification,” the district court judge properly declined to

recuse himself from the present petition. See id. at 1252 (citation omitted); id.

at 1251 (noting that judges have “a strong duty to sit” when recusal is not

warranted). Thus, the district court did not err.

CONCLUSION

For all these reasons, we deny Love a COA.

Entered for the Court

Gregory A. Phillips
Circuit Judge

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