Stanley v. McKune, 10th Cir. (2005)
Stanley v. McKune, 10th Cir. (2005)
Stanley v. McKune, 10th Cir. (2005)
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY STANLEY,
Petitioner - Appellant,
No. 05-3100
v.
(D. Kansas)
Respondents - Appellees.
ORDER
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Pro se Applicant Danny Stanley filed an application for a writ of habeas
corpus under 28 U.S.C. 2254 in the United States District Court for the District
of Kansas on January 14, 2005. He is currently serving a 144-month sentence for
his 1996 conviction in Kansas state court. The application raises claims of
ineffective assistance of counsel and double jeopardy.
The district court dismissed Applicants application as untimely when he
failed to show cause, as required by the district courts January 20, 2005, order,
for his failure to file his application within the one-year limitations period
imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
defective pleading during the statutory period. Gibson v. Klinger, 232 F.3d 799,
808 (10th Cir. 2000) (internal quotation marks and citations omitted). An
applicant must be diligent in filing his own claims, and misplaced reliance on an
attorney does not explain why Applicant did not file his first postconviction
pleading until six years after his conviction.
Although Applicant is correct in his assertion that an attorneys failure to
file a requested appeal constitutes ineffective assistance of appellate counsel, Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000), he is incorrect in assuming that
counsels ineffectiveness is always a rare and exceptional circumstance worthy
of equitable tolling. Applicant has not alleged circumstances that prevented him
from discovering his counsels failure to file the direct appeal for the six years
from the date of his conviction to the filing of his first postconviction pleading. It
cannot be said that Applicant has diligently pursued his federal claims.
For the same reasons, Applicant cannot obtain the benefit of 28 U.S.C
2244(d)(1)(D), which allows for statutory tolling of the one-year limitations
period until the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence. It
should not have taken Applicant a matter of years to realize that his attorney had
failed to pursue the allegedly requested appeal.
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Because the district courts procedural ruling would not be debatable among
jurists of reason, we DENY Applicants application for a COA and DISMISS the
appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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