FILED

United States Court of Appeals

Tenth Circuit

June 13, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD NEWSON, III,

Petitioner - Appellant,

v.

ATTORNEY GENERAL OF

KANSAS,

Respondent - Appellee.

No. 13-3316

(D.C. No. 5:13-CV-03187-SAC)

(D. Kan.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges. 

Petitioner, Edward Newson, III, a Kansas state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) so he can appeal the district court’s

dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254.1

See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final

order disposing of a § 2254 petition unless the petitioner first obtains a COA). 

On August 28, 1991, Newson pleaded guilty in Kansas state court to one

count of indecent liberties with a child. He received a suspended sentence which

was revoked on June 25, 1996. At that time, he was sentenced to an

1

Newson’s request to proceed in forma pauperis is granted.
indeterminate term of five to twenty years’ imprisonment, but he was granted

probation. Newson’s probation was revoked on February 12, 1997, and he began

serving his sentence. 

On February 21, 1997, Newson filed a motion to modify his sentence. That

motion was denied on March 3, 1997. On August 6, 1997, Newson filed a motion

for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1507. That motion

was denied on November 6, 1997, and the Kansas Supreme Court affirmed the

denial on December 11, 1998. Thereafter, Newson filed six additional motions,

seeking to have his sentenced modified and seeking to withdraw his guilty plea. 

All were denied.

Newson filed his federal habeas corpus action on October 22, 2013. The

district court raised the issue of timeliness sua sponte and ordered the parties to

file briefs addressing the matter. See Day v. McDonough, 547 U.S. 198, 209-10

(2006). After considering the parties’ arguments, including the detailed statement

of the procedural history provided by Respondent, the district court concluded

Newson’s § 2254 petition was filed outside the one-year limitations period

established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 

See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations for § 2254

applications); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (holding

prisoners whose state convictions became final prior to the enactment of the

AEDPA have one year from April 24, 1996, to file a federal habeas petition). The

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district court concluded the one-year statute of limitations period expired no later

than May 14, 1997, and was not statutorily tolled while Newson’s § 60-1507

motion was pending in state court because he did not first seek that relief until

after the limitations period had already expired. See Fisher v. Gibson, 262 F.3d

1135, 1142-43 (10th Cir. 2001). The court further concluded Newson failed to

identify any circumstances that would support the equitable tolling of the

limitations period. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). 

Accordingly, the court dismissed Newson’s § 2254 petition as untimely. 

To be entitled to a COA, Newson must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling of the limitations period for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). 

This court has reviewed Newson’s appellate brief and application for COA,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Newson is

not entitled to a COA. In his appellate brief, Newson has presented no argument

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that the district court miscalculated the one-year period. Further, the record

establishes Newson has failed to demonstrate any circumstance that justifies

equitable tolling. Thus, it is clear the district court did not abuse its discretion

when it refused to equitably toll the one-year limitations period.

The district court’s resolution of Newson’s habeas application is not

reasonably subject to debate and his claims are not adequate to deserve further

proceedings. Accordingly, Newson has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2). This court denies Newson’s request for a COA and dismisses this

appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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