F I LED

United States Court of Appeals

Tenth Circuit

August 9, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MERRILL ANDREWS, 

Petitioner-Appellant, No. 06-3108

v. (D.C. No. 05-CV-3480-SAC)

STATE OF KANSAS; PHIL KLINE,

Attorney General of Kansas, 

(D. Kan.)

Respondents-Appellees.

 

ORDER

Before KELLY, McKAY, and LUCERO, Circuit Judges.

In 1978, Appellant was convicted in Kansas state court of felony murder. 

At trial, the state argued that Appellant, along with two unknown persons, killed a

woman in the course of robbing her home. Appellant was paroled in 1999 but is

now incarcerated in a federal penitentiary for robbing a credit union in 2002. The

Kansas Department of Corrections issued a parole violation warrant for Appellant

following the credit union robbery. Appellant has consistently maintained his

innocence in the 1978 case, and, in this 28 U.S.C. § 2254 petition, he challenges

the state conviction.

To overcome the one-year statute of limitations on § 2254 petitions,

Appellant argues that he recently discovered evidence supporting his claim of
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actual innocence. The habeas statutory scheme allows for late-filed petitions if

the petition is filed one year from “the date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D). The burden to demonstrate due diligence

that would toll the statute of limitations is on the Appellant. See Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001)

(“[Equitable tolling] is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.”). 

In 2002, Appellant discovered that an individual claimed to have heard

another person admit to committing the murder for which Appellant was

convicted. Appellant also discovered that the person who allegedly confessed had

a brother who owned a car similar to the car seen outside the 1978 victim’s home

during the robbery. In February 2003, Appellant filed for relief from the 1978

conviction in Kansas state court based on the new evidence, which was denied.

In dismissing Appellant’s § 2254 petition, the district court found that

Appellant failed to demonstrate any extraordinary circumstances that prevented

him from making a timely filing. Order, 3 (D. Kan. Mar. 10, 2006). In addition,

the district court noted that, when making a claim of actual innocence, Appellant

“must show that ‘it is more likely than not that no reasonable juror would have

found [Appellant] guilty beyond a reasonable doubt.’” Id. at 4 (quoting Schlup v.
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Delo, 513 U.S. 298, 327 (1995)). The district court went on to note that even if

Appellant established the truth of the alleged confession and the ownership of the

similar car, these facts are not inconsistent with the government’s theory of the

case that Appellant and two others committed the crime. Id. (citing Andrews v.

State, No. 92,024, 2005 WL 823913, at *2 (Kan. Ct. App. Apr. 8, 2005)). The

district court did not grant Appellant a certificate of appealability (“COA”).

To obtain a COA, Appellant must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Appellant

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) (quotations omitted). 

We have carefully reviewed Appellant’s brief, the district court’s

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

or Appellant’s filing raises an issue which meets our standard for the grant of a

COA. For substantially the same reasons set forth by the district court in its

March 10, 2006, order, we cannot say “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in 
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a different manner.” Id. We, therefore, DENY Petitioner’s request for a COA

and DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge