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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
JUN 29 2004
PATRICK FISHER
Clerk
SHURMAN L. DORAN-BEY,
Petitioner-Appellant,
v.
LOUIS E. BRUCE; PHILL KLINE,
Attorney General of Kansas; THE
STATE OF KANSAS,
No. 04-3005
(D. Kansas)
(D.Ct. No. 02-CV-3351-SAC)
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before SEYMOUR, LUCERO, and OBRIEN, Circuit Judges.
Shurman L. Doran-Bey, appearing pro se, filed an application for a
certificate of appealability (COA) challenging the district courts dismissal of his
28 U.S.C. 2241 petition 1, claiming the Kansas correctional authorities
Although Doran-Bey titled his memorandum of law in support of his
petition as an action Pursuant to 28 U.S.C. 2254 Incorporating 28 U.S.C.
2241, the district court construed it as a petition filed under 28 U.S.C. 2241
because it challenged the execution of his sentence, not its validity. See Montez
v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). We agree, but note that whether
this action is construed under 2241 or 2254, Doran-Bey is required to comply
with the applicable statute of limitations. Burger v. Scott, 317 F.3d 1133, 1138
(10th Cir. 2003).
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improperly aggregated his sentences and denied him credit for time on parole.
We deny his request for a COA and dismiss the appeal.
I.
Background
As noted by the Kansas Court of Appeals, Doran has been continuously
under the supervision of the [Kansas] Department of Corrections (DOC) since
1980 when he was given a controlling sentence of 5 to 20 years for crimes of
aggravated burglary, aggravated robbery, and rape. Doran-Bey v. State, No.
88,494 (Kan. Ct. App. July 19, 2002); (R., Reno County Doc. No. 01-C-569, at
120). He was conditionally released on parole in 1989. However, within five
months he violated his parole and was returned to prison. He was again
conditionally released on or about June 9, 1990, but was arrested on December 5,
1990, and eventually charged with felony theft, driving under the influence (DUI),
speeding and burglary. Upon pleading guilty to DUI and felony theft, he was
sentenced to one to three years imprisonment, the sentence to run consecutive to
his 1980 sentence.
In March 1992, Doran-Bey was transported to the Hutchinson Correctional
Facility in Hutchinson, Kansas. Shortly after his arrival at Hutchinson, DoranBey met with a Unit Team Member . . . who . . . inform[ed] him, that his 1980
and 1990 convictions, had been aggregated according to K.S.A. 1983 Supp. 214608(f)(4) and (5) and that his aggregate sentence was six to twenty-three years.
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(R. Doc. 2.) After about 4 years, 10 months and 14 day[s,] he was again
conditionally released. (Id.) Not surprisingly, he violated parole and was
returned to prison in 1998. The cycle repeated several years later, returning him
to custody in 2001.
Doran-Bey filed an inmate grievance in 2001, alleging his sentences were
incorrectly calculated. On review, the Unit Team found his sentences had been
correctly computed and the Warden and Secretary of Corrections affirmed those
findings. On December 14, 2001, he filed a petition for writ of habeas corpus in
the state district court. He claimed his 1980 sentence should have been
considered satisfied when he was released on parolein effect, he claimed he
was entitled to credit for time spent on parole for his 1980 sentence. He also
contended his current sentence was illegal because his 1980 sentence, received
prior to the passage of the Kansas statute authorizing aggregation, could not be
aggregated with his 1990 sentence. The state court dismissed his petition,
concluding he failed to state a cause of action, and even if he had, his claims were
time-barred. The Kansas Court of Appeals affirmed. See Doran-Bey, supra.
Doran-Bey subsequently filed a petition for a writ of habeas corpus in the
federal district court. The Government moved to dismiss the action, arguing it
was untimely filed. The district court agreed. Finding Doran-Bey was aware of
the facts supporting his claim in 1992, the court concluded the Antiterrorism and
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Effective Death Penalty Act (AEDPA) required Doran-Bey to file a federal habeas
petition (or a state petition to toll the statute of limitations) by April 24, 1997. 28
U.S.C. 2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001)
(when a conviction became final before AEDPAs effective date of April 24,
1996, a petitioner has one year after AEDPAs enactment to file a 2254
petition), cert. denied, 535 U.S. 1034 (2002). Because he did not do so until long
after the AEDPA limitation period had expired, and equitable tolling was not
warranted, the district court dismissed the habeas petition and denied issuance of
a COA.
II.
Discussion
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). A COA may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district courts resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further. Miller-El, 537 U.S. at 327. This requires an overview of
the claims in the habeas petition and a general assessment of their merits.
Miller-El, 537 U.S. at 336. This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In
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fact, the statute forbids it. Id.
When the district court denies a habeas petition on procedural
grounds without reaching the prisoners underlying constitutional
claim, a COA should issue when the prisoner shows, at least, 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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The test being two-pronged, a
COA may be denied on either basis. Id. at 485. After careful review of the
record, we conclude reasonable jurists could not disagree Doran-Bey failed to file
his petition within the applicable limitation period and equitable tolling is
unwarranted.
Doran-Bey admits he was informed of the aggregation of his sentences in
1992, the factual basis supporting his claims. Consequently, the limitation period
expired on April 24, 1997 (one year after AEDPAs passage), in which time he
was required to file his habeas petition or initiate state post-conviction
proceedings. 28 U.S.C. 2244(d)(2); Burger, 317 F.3d at 1138 (one-year
limitation period for filing a federal habeas petition is tolled during the pendency
of a state application for post-conviction relief properly filed during the limitation
period). Doran-Bey did not file his state habeas petition until December 14,
2001, over four years after the expiration of the one-year limitation period set
forth in 28 U.S.C. 2244(d)(1)(A). Moreover, he presents no facts supporting an
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entitlement to equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000) ("[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"), cert. denied, 531 U.S. 1194
(2001).
III.
Conclusion
After careful review of his brief, the district courts order, and the record,
we conclude Doran-Bey has failed to raise a debatable issue as to whether his
petition was improperly dismissed as time barred. Accordingly, we DENY
Doran-Beys application for a certificate of appealability and DISMISS the
appeal.
Entered by the Court:
TERRENCE L. OBRIEN
United States Circuit Judge
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