F I L E D

United States Court of Appeals

Tenth Circuit

December 15, 2005

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDSEL RAY HILL,

Petitioner-Appellant. No. 05-6155

v. (D.C. No. 04-CV-1728-F)

MIKE ADDISON, Warden; THE

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA, 

(W. D. Okla.)

Respondents-Appellees.

 

ORDER 

Before EBEL, McKAY, and HENRY, Circuit Judges.

This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner was convicted

after a bench trial of first-degree murder and unlawful disposal of a body. He was

sentenced to life imprisonment without the possibility of parole and five years’

imprisonment. Petitioner then filed a § 2254 petition for habeas corpus relief

with the United States District Court for the Western District of Oklahoma. In

that petition, Petitioner argued for relief on the following grounds: (1) failure of

trial court to conduct a mental competency hearing; (2) prosecutorial misconduct;

(3) lack of a pretrial Daubert hearing as to the testimony of certain witnesses,

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (4)
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ineffective assistance of trial counsel; and (5) ineffective assistance of appellate

counsel. In his report and recommendation (“R&R”), the magistrate judge

recommended that the petition be denied as time-barred. After considering

Petitioner’s objections and conducting a de novo review of the petition, the

district court found that Petitioner had not made a sufficient showing to equitably

toll AEDPA’s one-year statute of limitations, adopted the R&R, and dismissed the

§ 2254 petition as untimely. The district court also declined to grant Petitioner a

certificate of appealability. Petitioner has renewed his request for a certificate of

appealability with this court. The issues he raises on appeal are identical to those

brought before the district court. 

In order for this court to grant a certificate of appealability, Petitioner must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

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) (internal quotations omitted). When a § 2254 petition is denied by the

district court for procedural reasons, as is the case here, Petitioner must clear the

added hurdle of showing “that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id.
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We have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standards for the grant of a

certificate of appealability. For substantially the same reasons as set forth by the

magistrate judge’s R&R, which the district court adopted in its April 27, 2005

Order, we cannot say that it is “debatable whether the district court was correct in

its procedural ruling.” Id. 

We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. 

Entered for the Court

Monroe G. McKay

Circuit Judge