No. 2:13-CV-00201-DB D. Utah
HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge
Elroy Tillman, a state prisoner proceeding pro se, applied
for relief under 28 U.S.C. § 2254 more than one year
after his state-court conviction and sentence became final.
The United States District Court for the District of Utah
dismissed his application as untimely. Defendant now requests
a certificate of appealability (COA) from this court to
appeal the dismissal. See 28 U.S.C. §
2253(c)(1)(A). We deny a COA and dismiss the appeal because
no reasonable jurist could debate that the district court
erred in its denial of his claim.
Defendant was convicted of first-degree murder and sentenced
to death. The Utah Supreme Court initially affirmed the
conviction and death sentence. See State v.
Tillman, 750 P.2d 546, 577 (Utah 1987). Over the ensuing
years, Defendant repeatedly sought postconviction relief from
state and federal courts without success. But in 2001 a state
district court granted a petition for postconviction relief,
vacating Defendant's death sentence but not his
conviction. The Utah Supreme Court affirmed. Defendant was
resentenced to life imprisonment on December 23, 2005.
See Tillman v. Bigelow, 484 F.App'x. 286, 287
(10th Cir. 2012). He did not appeal his resentencing.
Defendant initiated his current § 2254 application. The
district court found it to be a second-or-successive
application and dismissed it for lack of authorization from
this court. But when Defendant sought authorization from this
court, we dismissed the request as unnecessary because of his
2005 resentencing. We explained that Supreme Court precedent
treated "the existence of a new judgment [as]
dispositive" in determining whether a § 2254
application is second or successive. Order, R. at 228
(quoting Magwood v. Patterson, 561 U.S. 320, 338
(2010)). The district court accordingly vacated its dismissal
order and directed the state to file an answer to
Defendant's application. In a March 2016 order the
district court dismissed the application as untimely.
Defendant now seeks a COA from us.
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 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). 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."
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a one-year time limit for filing a § 2254 application.
The relevant language follows:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review; . . .
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...