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    Sellers v. Jordan, 10th Cir. (1999)

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    Danny Ray Sellers filed a habeas corpus petition in federal district court challenging his 1996 state court conviction for first degree rape. The district court denied the petition as untimely, agreeing with the magistrate judge's recommendation that Sellers had failed to file within the one-year statute of limitations and did not demonstrate any valid basis to toll the limitations period. Sellers appealed the denial to the Tenth Circuit Court of Appeals. The Tenth Circuit denied Sellers' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied, and dismissed the appeal.

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    Sellers v. Jordan, 10th Cir. (1999)

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    Danny Ray Sellers filed a habeas corpus petition in federal district court challenging his 1996 state court conviction for first degree rape. The district court denied the petition as untimely, agreeing with the magistrate judge's recommendation that Sellers had failed to file within the one-year statute of limitations and did not demonstrate any valid basis to toll the limitations period. Sellers appealed the denial to the Tenth Circuit Court of Appeals. The Tenth Circuit denied Sellers' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied, and dismissed the appeal.

    Original Description:

    Filed: 1999-06-09 Precedential Status: Non-Precedential Docket: 99-6027

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    Danny Ray Sellers filed a habeas corpus petition in federal district court challenging his 1996 state court conviction for first degree rape. The district court denied the petition as untimely, agreeing with the magistrate judge's recommendation that Sellers had failed to file within the one-year statute of limitations and did not demonstrate any valid basis to toll the limitations period. Sellers appealed the denial to the Tenth Circuit Court of Appeals. The Tenth Circuit denied Sellers' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied, and dismissed the appeal.

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    Download as pdf
    23 views6 pages

    Sellers v. Jordan, 10th Cir. (1999)

    Uploaded by

    Scribd Government Docs
    Danny Ray Sellers filed a habeas corpus petition in federal district court challenging his 1996 state court conviction for first degree rape. The district court denied the petition as untimely, agreeing with the magistrate judge's recommendation that Sellers had failed to file within the one-year statute of limitations and did not demonstrate any valid basis to toll the limitations period. Sellers appealed the denial to the Tenth Circuit Court of Appeals. The Tenth Circuit denied Sellers' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied, and dismissed the appeal.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 9 1999

    PATRICK FISHER
    Clerk

    DANNY RAY SELLERS,


    Petitioner-Appellant,
    v.
    LENORA JORDAN,

    No. 99-6027
    (W. District of Oklahoma)
    (D.C. No. 98-CV-1367-T)

    Respondent-Appellee.

    ORDER AND JUDGMENT *


    Before TACHA, McKAY, and MURPHY, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court
    therefore orders the case submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    Danny Ray Sellers, proceeding

    pro se , seeks a certificate of appealability

    so he can appeal the district courts denial of his 28 U.S.C. 2254 habeas
    petition. See 28 U.S.C. 2253(c)(1)(A) (providing that an appeal may not be
    taken from the denial of a 2254 habeas petition unless the petitioner first
    obtains a certificate of appealability). Because Sellers failed to file his petition
    for writ of habeas corpus in a timely manner, this court
    certificate of appealability and

    DENIES Sellers a

    DISMISSES this appeal.

    See id. 2244(d)

    (imposing a one-year limitation period on an application for a writ of habeas


    corpus).
    On August 13, 1996, Sellers appeared before the District Court of Alfalfa
    County, Oklahoma and, pursuant to a plea agreement, entered a plea of

    nolo

    contendre to a charge of first degree rape. On the same day, Sellers was
    sentenced to 20 years imprisonment, 11 of which were suspended. Sellers never
    made a motion to withdraw his plea and never challenged his conviction or
    sentence on direct appeal. On May 23, 1997, Sellers filed an Application for
    Post-Conviction Relief with the state district court (the first application). In
    his first application, Sellers raised two grounds for relief: (1) that his counsel was
    constitutionally ineffective and (2) that he was denied due process of law because
    there was no factual basis before the district court to support his plea. The state
    district court denied relief on May 23, 1997. Sellers failed to appeal the denial of
    -2-

    post-conviction relief until July 8, 1997 when he filed a Petition in Error with the
    Oklahoma Court of Criminal Appeals (the OCCA). Because Sellers Petition
    in Error was filed more than thirty days after the entry of the order denying his
    first application, the OCCA dismissed Sellers appeal as untimely. Sellers then
    filed a Petition for An Appeal Out of Time with the OCCA. The OCCA denied
    this petition because Sellers had failed to first seek relief from the denial of his
    Petition in Error from the state district court. Sellers then filed a second
    Application for Post-Conviction Relief (the second application) with the state
    district court. In his second application, Sellers raised five grounds for relief, all
    of which involved either an ineffective assistance of counsel claim or a denial of
    due process claim. The district court denied Sellers second application on June
    4, 1998. Sellers appealed that decision to the OCCA. The OCCA ultimately
    affirmed the denial of Sellers second application.
    Sellers filed the instant 2254 Petition for Writ of Habeas Corpus (the
    habeas petition) with the United States District Court for the Western District
    of Oklahoma on September 30, 1998. In his habeas petition, Sellers reasserts the
    five ineffective assistance and due process claims he originally raised in the
    second application. Sellers habeas petition was referred to a magistrate judge
    for initial proceedings. The magistrate judge issued a Report and
    Recommendation in which he recommended that the habeas petition be dismissed
    -3-

    because it had not been filed within one year of Sellers conviction and
    sentencing and, therefore, was untimely. The magistrate judge considered several
    factors raised by Sellers in support of the tolling of the one-year limitations
    period including Sellers claims that: (1) the limitations period was tolled during
    the time the first and second applications were pending in state court, (2)
    unconstitutional state action impeded the filing of the habeas petition, and (3)
    after-discovered evidence established that he is actually innocent. The magistrate
    judge, however, concluded that Sellers had failed to establish a basis for tolling
    the limitations period and recommended that Sellers habeas petition be
    dismissed as untimely.
    Sellers filed an objection to the magistrate judges Report and
    Recommendation. In that objection, Sellers argued that the magistrate judge had
    failed to adequately consider the factors that would support the equitable tolling
    of the one-year limitations period. The federal district court, over Sellers
    objections, adopted the Report and Recommendation and ordered Sellers habeas
    petition dismissed as untimely. The district court specifically found that Sellers
    had failed to file his habeas petition within the one-year limitations period and
    had failed to demonstrate any basis on which the limitations period could be
    tolled. Sellers filed an Application for Certificate of Appealability to appeal the

    -4-

    federal district courts denial of his habeas petition. That request was denied and
    Sellers appealed that denial to this court.
    Sellers is not entitled to receive a certificate of appealability unless he can
    make a substantial showing of the denial of a constitutional right.

    Id.

    2253(c)(2). Sellers can make such a showing by demonstrating the issues raised
    are debatable among jurists, a court could resolve the issues differently, or that
    the questions presented deserve further proceedings.
    U.S. 880, 893 n.4 (1983). Upon

    See Barefoot v. Estelle , 463

    de novo review of Sellers Application for

    Certificate of Appealability, the magistrate judges Report and Recommendation,


    the district courts Order, and the entire record on appeal, this court concludes
    the district courts resolution of Sellers claims is not reasonably debatable,
    subject to a different resolution on appeal, or deserving of further proceedings.
    See id. Consequently, Sellers has not made a substantial showing of the denial of
    a constitutional right and is not entitled to a certificate of appealability.

    See 28

    U.S.C. 2253(c)(2). Accordingly, Sellers application for a certificate of


    appealability is DENIED for substantially those reasons set out in the magistrate
    judges Report and Recommendation dated December 4, 1998, and the district
    court Order dated December 29, 1998, and the appeal is therefore

    DISMISSED .

    ENTERED FOR THE COURT

    -5-

    Michael R. Murphy
    Circuit Judge

    -6-

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