FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES CO URT O F APPEALS
                                                                  October 1, 2007
                                                  Elisabeth A. Shumaker
                            TENTH CIRCUIT             Clerk of Court



JA SO N A. FU LTO N ,

              Petitioner-A ppellant,
                                                        No. 07-3056
       v.
                                                         (D. Kansas)
                                                 (D.C. No. 05-CV-3486-SAC)
DAVID R. M cKUNE, W arden,
Lansing Correctional Facility,

              Respondent-Appellee.



                                       OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.


      Petitioner, Jason Fulton, seeks a certificate of appealability (“COA”) from

this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because Fulton has not “made a substantial showing of the

denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. 

      After a K ansas jury trial, Fulton was convicted of felony murder,

conspiracy to possess cocaine, and attempted possession of cocaine. State v.

Fulton, 

, 20 (Kan. 2000). His convictions were affirmed on direct
appeal. 

Fulton then filed a motion pursuant to Kan. Stat. Ann.

§ 60-1507, seeking state post-conviction relief. The motion was denied by the

state district court and the Kansas Court of Appeals affirmed the denial. Fulton v.

State, 

(Kan. Ct. App. 2005) (unpublished disposition). The Kansas

Supreme Court denied review on September 22, 2005.

      Fulton filed the instant § 2254 habeas application on December 29, 2005,

raising allegations (1) the trial court committed multiple errors including failing

to grant his motion for a mistrial and failing to give an accomplice witness

instruction, (2) his rights under the Confrontation Clause were violated by an ex

parte communication between the trial court and a juror, and (3) the crime of

attempted possession of cocaine cannot be used to support a felony murder

conviction. Respondent moved to dismiss Fulton’s § 2254 application, arguing it

was untimely because it was not filed within the one-year statute of limitations

applicable to federal habeas corpus petitions filed by state prisoners. See 28

U.S.C. § 2244(d)(1). The district court granted Respondent’s motion and

dismissed Fulton’s habeas petition as untimely. Fulton then filed a Rule 59(e)

motion, challenging the district court’s determination his convictions became

final on October 19, 2000, when the time for seeking a writ of certiorari in the

United States Supreme Court from the decision of the K ansas Supreme Court

expired. Fulton argued his conviction did not become final until November 13,

2000, because, inter alia, under Kansas Supreme Court Rule 7.06 he had twenty

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days to file a petition for rehearing after the Kansas Supreme Court affirmed his

conviction and that twenty-day period should be added to the ninety days he had

to file a petition for a writ of certiorari in the United States Supreme Court. The

district court considered Fulton’s arguments but concluded the Kansas Supreme

Court Rule does not delay the start of the ninety-day period unless a petition for

rehearing is actually filed. Cf. M ills v. M cKune, 186 Fed. App’x 828, 830-31

(10th Cir. 2006) (unpublished disposition).

      To be entitled to a COA, Fulton must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate w hether (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.” M iller-El v. Cockrell, 

, 336 (2003) (quotations

omitted); see also Slack v. M cDaniel, 

, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists w ould

find it debatable w hether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Fulton has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El at 338. Although Fulton need not demonstrate his appeal will

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succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” 

      This court has review ed Fulton’s appellate brief and application for COA,

the district court’s orders, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in M iller-El and concludes that Fulton is

not entitled to a COA. The district court’s resolution of Fulton’s habeas petition

is not reasonably subject to debate and his claims are not adequate to deserve

further proceedings. 1 Accordingly, Fulton has not “made a substantial showing of

the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2).

      This court denies Fulton’s request for a COA and dismisses this appeal.


                                        Entered for the Court



                                        Elisabeth A . Shumaker, Clerk




      1
        In his application for a COA, Fulton asserts that the one-year statute of
limitations should be equitably tolled. This assertion was not made in the district
court and this court does not consider issues raised for the first time on appeal.
Rhine v. Boone, 

, 1154 (10th Cir. 1999).

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