FILED

United States Court of Appeals

Tenth Circuit

April 30, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATHENIAL T. HURT,

Petitioner - Appellant, No. 09-3330

v. (D. Kansas)

DAVID MCKUNE, Warden, Lansing

Correctional Facility; STEPHEN N.

SIX, Kansas Attorney General,

Respondents - Appellees.

(D.C. No. 5:09-CV-03142-SAC)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Nathenial T. Hurt, a Kansas state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the denial of his application under

28 U.S.C. § 2254 for habeas relief. See id. § 2253(c) (requiring COA to appeal

denial of application). Because Mr. Hurt has failed to make a substantial showing

of the denial of a constitutional right, as required by 28 U.S.C. 2253(c)(2), we

deny his request for a COA and dismiss the appeal.

I. BACKGROUND

Mr. Hurt was convicted by a jury in Kansas state court of first-degree

murder and aggravated assault, and pleaded guilty to unlawful possession of a

firearm. On February 26, 2003, he was sentenced to consecutive sentences of life

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 1
-2-

imprisonment on the murder charge, 24 months on the aggravated assault charge,

and eight months on the firearm charge. He was eligible for parole on his life

sentence after 50 years (a “hard 50”) sentence. 

Mr. Hurt appealed to the Kansas Supreme Court, which affirmed the

convictions and sentences on December 17, 2004. See State v. Hurt, 101 P.3d

1249 (Kan. 2004). In December 2005 he filed a petition for a writ of habeas

corpus in Kansas state district court; but the court denied the petition, the Kansas

Court of Appeals affirmed, and the Kansas Supreme Court denied review on July

2, 2008. On July 6, 2009, he filed his § 2254 application in the United States

District Court for the District of Kansas, asserting (1) that he was denied his Sixth

and Fourteenth Amendment right to a fair trial because of ineffective assistance

of counsel; (2) that prosecutorial misconduct during closing arguments deprived

him of a fair trial in violation of the Due Process Clause of the Fourteenth

Amendment; and (3) that the Kansas hard-50 sentencing provisions violated his

Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S.

466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).

The district court rejected Mr. Hurt’s § 2254 application as time-barred. It

explained its calculation in an order requiring Mr. Hurt to show why his § 2254

application was not untimely. Because Mr. Hurt did not petition the United States

Supreme Court for a writ of certiorari, the one-year limitation period of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 2
1

The specific date in December 2005 on which Mr. Hurt filed his petition

for postconviction relief in Kansas district court does not appear in the record. 

We will assume, as did the district court, that he filed it on December 1, 2005.

-3-

§ 2244(d)(1)(A), began to run when his time to file such a petition expired on

March 17, 2005, which was 90 days after the Kansas Supreme Court affirmed his

conviction, see Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (“[T]he oneyear limitation period for filing a federal habeas petition does not begin to run

until . . . after the [90-day] time for filing a petition for certiorari with the

Supreme Court has passed.” (internal quotation marks omitted)); Sup. Ct. R. 13(1)

(providing a 90-day period during which a petition for a writ of certiorari may be

filed following entry of judgment by a state court of last resort). The limitations

period ran until Mr. Hurt filed his state petition for postconviction relief in

December 2005,1

 which tolled the running of the period until July 3, 2008, when

the Kansas Supreme Court denied review. See 28 U.S.C. § 2244(d)(2). The oneyear limitations period thus expired no later than November 2008, long before

Mr. Hurt filed his federal habeas petition in July 2009. 

In response, Mr. Hurt did not challenge the calculation but argued that he

was entitled to equitable tolling because (1) his attorney “erroneously advised”

him about the deadline for his application, R., Vol. 1 at 80; (2) procedural

defaults do not apply to “substantive mental competency claims,” id. (internal

quotation marks omitted); and (3) the district court improperly acted sua sponte in

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 3
-4-

raising the issue of procedural default. The district court was not persuaded and

dismissed the § 2254 application as untimely.

In requesting a COA from this court, Mr. Hurt asserts (1) that he was

denied his Sixth and Fourteenth Amendment rights to a fair trial and to effective

assistance of counsel because (a) trial counsel failed to pursue a mens rea defense

and to challenge his competency to stand trial, (b) counsel failed to file a motion

to suppress the firearm discovered during an allegedly unlawful search, and (c)

counsel gave him incorrect information that led him to plead guilty to criminal

possession of a firearm; (2) that the trial court and prosecutor failed to perform

their own duties to investigate and present his mental-defect defense; (3) that the

state court unlawfully denied his state habeas petition in that it failed to construe

his pleadings liberally or to conduct an evidentiary hearing on the claims that he

raised; and (4) that he is entitled to equitable tolling of the limitations period

because (a) claims of substantive mental incompetency defeat a procedural bar,

(b) he had constitutionally ineffective assistance of counsel, and (c) his

postconviction counsel told him the incorrect deadline for submitting his habeas

claim to federal court.

II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 4
-5-

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 quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

Because the district court was clearly correct in ruling that Mr. Hurt’s

§ 2254 application was untimely, we need not address his arguments on the

merits. The only dispute regarding timeliness is whether Mr. Hurt was entitled to

equitable tolling. Although he states three grounds for tolling in his brief in this

court, we limit our discussion to the two of those grounds that were raised below: 

(1) that his postconviction attorney told him the wrong deadline for filing his

habeas petition and (2) that his claim of substantive mental incompetence cannot

be procedurally barred. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir.

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 5
-6-

2007) (ordinarily we will not consider an argument on appeal that was not raised

below).

As for Mr. Hurt’s first argument, he does not allege that his counsel

intentionally misled him, but rather that counsel “misquoted the deadline,” Aplt.

Br. at 28. There is no constitutional right to counsel at the habeas stage of a

proceeding, and equitable tolling is not appropriate for simple negligence by

habeas counsel. See Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007)

(“Habeas counsel’s negligence is not generally a basis for equitable

tolling . . . .”); cf. Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no

constitutional right to an attorney in state post-conviction proceedings.”). We can

also readily dispose of Mr. Hurt’s second argument. Although a defendant’s

mental incompetence could certainly be cause for failure to preserve a claim in

state-court proceedings, see Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir.

1997); Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985), he has not

asserted that his untimeliness resulted from such incompetence. Indeed, as the

district court noted, he has alleged “no facts other than his contested memory loss

as the basis for his claim of mental incompetency at the time of the offense, and

no facts whatsoever indicating he was mentally incompetent at trial.” Hurt v.

McKune, No. 09-03142-SAC, 2009 WL 3447246, at *2 (D. Kan. Oct. 21, 2009),

available at R., Vol. 1 at 101 (footnote omitted). 

III. CONCLUSION

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 6
-7-

No reasonable jurist could debate whether the district court’s dismissal of

Mr. Hurt’s application under 28 U.S.C. § 2254 was “debatable or wrong.” Slack,

529 U.S. at 484. Therefore we DENY the application for a COA and dismiss the

appeal. We also DENY Mr. Hurt’s motion to supplement the record. 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

Appellate Case: 09-3330 Document: 01018413128 Date Filed: 04/30/2010 Page: 7