*

 This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel.

FILED

United States Court of Appeals

Tenth Circuit

June 7, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL JAMES PERRY,

Petitioner-Appellant,

v. No. 10-3072

DAVID R. McKUNE, Warden;

STEVEN SIX, Attorney General of the

State of Kansas, 

Respondents-Appellees.

(D.C. No. 5:08-CV-03181-SAC)

(D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.

Michael James Perry, a Kansas state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) in order to challenge the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely filed. For

the following reasons, we DENY his request for a COA and DISMISS this matter.

I

In December 2002, Perry entered a plea of no contest to two counts of rape,

and he was sentenced to a total term of 294 months’ imprisonment. The Kansas

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Court of Appeals affirmed the convictions, and on November 25, 2003, the

Kansas Supreme Court denied Perry’s motion to file a petition for review out of

time. 

 On September 28, 2004, Perry filed his first petition for a writ of habeas

corpus in federal district court. Because Perry had not exhausted his claims in

state court by filing a timely appeal to the Kansas Supreme Court, his petition

was dismissed without prejudice. On October 17, 2005, this court denied his

request for a COA, concluding that Perry had “failed to exhaust his state law

remedies, ha[d] not shown cause for his procedural default, and ha[d] not

demonstrated that dismissal of his claim [would] result in a fundamental

miscarriage of justice.” Perry v. McKune, 150 F. App’x 899, 901 (10th Cir.

2005). 

On April 13, 2006, Perry filed for post-conviction relief in Kansas state

district court. The state district court concluded that Perry’s claims were identical

to those presented in his direct appeal, and dismissed the matter. The Kansas

Court of Appeals affirmed that decision, and the Kansas Supreme Court denied

review on September 27, 2007. 

On July 8, 2008, Perry filed the present § 2254 petition for habeas corpus

relief. He argued to the district court that his plea was coerced, he was prejudiced

by ineffective assistance of trial counsel, and the criminal complaint was

defective. The district court ordered Perry to show cause why his petition should

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 Prior to filing his brief and application for a COA, Perry filed in this court

a “Motion for Order to Federal District Court to Consider Successive Petition for

Writ of Habeas Corpus,” which was denied. Perry was directed to address his

claims of error in his brief, and he was informed that to the extent he was asking

for an abatement pending the outcome of a Kansas Supreme Court proceeding in

which he is involved, he could raise that issue in his brief as well. He has not

requested such an abatement in either his brief or application for a COA. 

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not be dismissed as untimely. After Perry filed a response, the district court

concluded that the petition was untimely, and Perry was not entitled to statutory

or equitable tolling. The district court alternatively reasoned that his claims were

procedurally defaulted because he presented essentially the same claims for which

he failed to seek timely review in the Kansas Supreme Court. The district court

then dismissed his petition. Perry now seeks a COA in order to appeal this

dismissal.1

II

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

COA is a jurisdictional prerequisite to our review of the dismissal of a § 2254

petition. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). We will issue a COA only if the petitioner has made a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make this showing, a 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

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deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotations omitted). Where, as here, a district court

dismisses a petition on procedural grounds, the petitioner must demonstrate “that

jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it

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

As the district court correctly noted, there is a one-year period of limitation

for filing § 2254 habeas petitions. See 28 U.S.C. § 2244(d)(1). This period

begins to run from “the date on which the [state court] judgment became final by

the conclusion of direct review or the expiration of the time for seeking such

review.” Id. § 2244(d)(1)(A). The limitation period is tolled by “[t]he time

during which a properly filed application for State post-conviction [relief] . . . is

pending . . . .” Id. § 2244(d)(2). However, this period is not tolled by the time

during which federal habeas relief is pending. Duncan v. Walker, 533 U.S. 167,

181–82 (2001). 

Additionally, this one-year limitation period “is subject to equitable tolling

but only in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000) (quotations omitted). Equitable tolling “is only

available when [a petitioner] diligently pursues his claims and demonstrates that

the failure to timely file was caused by extraordinary circumstances beyond his

control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). This equitable

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remedy “would be appropriate, for example, when a [petitioner] is actually

innocent, when an adversary’s conduct–or other uncontrollable

circumstances–prevents a [petitioner] from timely filing, or when a [petitioner]

actively pursues judicial remedies but files a defective pleading during the

statutory period.” Gibson, 232 F.3d at 808 (internal citations omitted). We

review the district court’s decision to deny equitable tolling for an abuse of

discretion. Fleming v. Evans, 481 F.3d 1249, 1254–55 (10th Cir. 2007). 

 After reviewing the record, we agree with the district court that Perry filed

the instant § 2254 petition well after the one-year limitation period, and this

period was not statutorily tolled. This one-year period began to run in February

2004, ninety days after the Kansas Supreme Court denied his motion to file a

petition for review out of time, when the time for filing a petition for certiorari to

the United States Supreme Court had passed. See Locke v. Saffle, 237 F.3d 1269,

1273 (10th Cir. 2001). Section 2241(d)(2) did not toll this limitation period while

his first petition for habeas relief was pending. See Duncan, 533 U.S. at 181–82. 

Thus, the limitation period expired in February 2005.

Further, there is no basis in the record to support equitable tolling. 

Construing his pleadings liberally, see Ledbetter v. City of Topeka, 318 F.3d

1183, 1187 (10th Cir. 2003), Perry argues that his state charging documents were

defective, and equitable tolling is available when a prisoner is actually innocent. 

Although “[a] claim of actual innocence may toll the AEDPA statute of

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 Because we conclude that Perry’s petition was untimely, we do not

address the district court’s alternative basis for dismissing Perry’s petition, i.e.,

that Perry’s claims were procedurally defaulted.

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limitations,” Perry’s arguments “do not relate to actual innocence.” See Laurson

v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007). “Actual innocence means

‘factual innocence.’” Id. (quoting Bousley v. United States, 523 U.S. 614, 623

(1998)). Perry has not provided a factual basis for his claim that he was actually

innocent of the crimes for which he was convicted. Indeed, he does not “assert

that he did not commit the crime to which he pleaded [no contest].” See id. 

Upon our review of the pleadings, the record on appeal, and the appendix,

Perry has not presented any “rare and exceptional circumstances,” Gibson, 232

F.3d at 808 (quotations omitted), that would support equitable tolling. Thus,

reasonable jurists would not debate the district court’s dismissal of Perry’s § 2254

petition as untimely.2

 

III

Accordingly, Perry’s request for a COA is DENIED and this matter is

DISMISSED.

Entered for the Court

Mary Beck Briscoe

Chief Judge 

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