FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 25, 2014
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT


 TOMMY KINGYON,

              Petitioner-Appellant,

 v.
                                                        No. 13-3288
 STATE OF KANSAS; REX PRYOR,                   (D.C. No. 5:12-CV-03038-SAC)
 Warden, Lansing Correctional                             (D. Kan.)
 Facility; DEREK SCHMIDT, Attorney
 General of the State of Kansas, *

              Respondents-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY **


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Kansas state prisoner Tommy Kingyon, appearing pro se, 1 requests a

certificate of appealability (“COA”) to challenge the district court’s denial of his



      *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Rex Pryor
is automatically substituted for David R. McKune as Respondent, and Derek
Schmidt is automatically substituted for Steve Six as Respondent.
      **
              This order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Kingyon proceeds pro se, we afford his filings a liberal
construction. See Erickson v. Pardus, 

, 94 (2007) (per curiam); Van
Deelen v. Johnson, 

, 1153 n.1 (10th Cir. 2007).
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Kingyon a COA

and dismiss this matter.

                                            I

      Following a jury trial in Wyandotte County, Kansas, Mr. Kingyon was

convicted of unlawful firearm possession, felony theft, aggravated assault, felony

murder, aggravated battery, and aggravated robbery. See State v. Johns, 

, 539 (Kan. 1985). “[H]e was sentenced on October 10, 1984, to ‘Life, plus,’”

and the Kansas Supreme Court affirmed his conviction on May 10, 1985. R. at 24

(Order, filed Apr. 10, 2012).

      On July 15, 2009, Mr. Kingyon filed a post-conviction motion attacking his

sentence under Kan. Stat. Ann. § 60-1507, which the state district court

summarily denied as untimely. See 

(Mem. Op., filed May 20, 2011).

Noting that Mr. Kingyon should have filed for such relief sooner than “some 24

years after the Supreme Court’s ruling” on his conviction, the Kansas Court of

Appeals affirmed the state district court in May 2011. 

see generally

Kan. Stat. Ann. § 60-1507(f)(1)(I) (requiring such “action . . . [to] be brought

within one year of . . . [t]he final order of the last appellate court in this state to

exercise jurisdiction on a direct appeal or the termination of such appellate

jurisdiction”). The Kansas Supreme Court subsequently denied Mr. Kingyon’s

petition for review.

                                            2
      On February 1, 2012, Mr. Kingyon filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254 in federal district court. He sought relief on four

grounds: (1) an “[i]ntervening change” to Kansas’s felony-murder statute; (2) the

admission of trial testimony elicited from a cooperating government witness; (3)

the state district court’s alleged failure to ensure his timely access to the

presentence investigation report; and (4) the state district court’s denial of his

post-conviction motion without holding an evidentiary hearing or appointing

counsel. R. at 7 (Pet. for Writ of Habeas Corpus, filed Feb. 1, 2012). The district

court issued an order on April 10, 2012, concluding that Mr. Kingyon’s petition

was time-barred. However, the court granted Mr. Kingyon thirty days to allege

facts sufficient to demonstrate that the matter should not be dismissed for

untimeliness.

      Mr. Kingyon responded to the district court’s order through a self-styled

“petition to show cause” wherein he asserted that his habeas application should be

reviewed in light of “exceptional circumstance[s,] . . . manifest injustice, newly

discovered evidence,” and “intervening changes in law.” 

(Pet. to Show

Cause, filed May 1, 2012) (capitalization altered). The district court determined

that this was not a sufficient showing to defeat the procedural bar and dismissed

his filings on March 6, 2013. Within a week, Mr. Kingyon asked the court to




                                           3
reconsider its prior ruling in another self-styled petition. 2 After reviewing Mr.

Kingyon’s reconsideration request, the district court denied it on November 12,

2013.

        On November 18, 2013, Mr. Kingyon contemporaneously filed his notice of

appeal and a “motion for appointment of amici curiae counsel.” The district court

construed the latter filing as a motion to appoint counsel and denied it the next

day. In the same order, the district court declined to issue a COA. Mr. Kingyon

renews these requests before us.

                                          II

                                          A

        “[A] state prisoner must obtain a COA to appeal the denial of a habeas

petition . . . whenever ‘the detention complained of [in the petition] arises out of

process issued by a State court.’” Montez v. McKinna, 

, 867 (10th

Cir. 2000) (second alteration in original) (quoting 28 U.S.C. § 2253(c)(1)(A)); see

also Miller-El v. Cockrell, 

, 335–36 (2003) (“Before an appeal may

be entertained, a prisoner who was denied habeas relief in the district court must

first seek and obtain a COA . . . .”). We will issue a COA “only if the applicant


        2
             Although no order has been entered by a federal magistrate judge in
his case, Mr. Kingyon titled this document a “Motion for a Stay of Magistrate
[Judge]’s Order.” The district court properly analogized his filing to a motion to
alter or amend a judgment under Federal Rule of Civil Procedure 59(e). See
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 

, 1296 n.3
(10th Cir. 2002).

                                          4
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make such a showing, the applicant is required to demonstrate

“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.” Allen v.

Zavaras, 

, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 

, 484 (2000)) (internal quotation marks omitted).

      When the district court denies habeas relief on procedural grounds, “the

applicant faces a double hurdle.” Coppage v. McKune, 

, 1281 (10th

Cir. 2008). Specifically, the applicant must establish “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.” Sigala v. Bravo, 

, 1126 (10th Cir. 2011) (emphasis added) (internal quotation marks omitted).

“Where a plain procedural bar is present and the district court is correct to invoke

it to dispose of a 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.” 

.

                                           B

      We have no cause to believe that reasonable jurists would debate the

district court’s conclusion that Mr. Kingyon’s petition is time-barred. The court

                                           5
referenced the statute of limitations applicable to his habeas filing—i.e., a one-

year period running—as seemingly pertinent here—from “the date on which the

judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). However, because

Mr. Kingyon’s conviction became final before the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), the district court noted that

he received a one-year grace period within which to file his petition. See Fisher

v. Gibson, 

, 1142 (10th Cir. 2001) (stating that such a limitations

period begins on April 24, 1996). The district court also observed that AEDPA’s

limitations period is tolled during the pendency of “properly filed application[s]

for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), and,

in “extraordinary circumstances,” for equitable purposes, see Miller v. Marr, 

, 978 (10th Cir. 1998).

      Thus, the district court correctly concluded, absent any applicable tolling,

Mr. Kingyon should have filed his habeas petition prior to April 24, 1997. No

state post-conviction filings were pending between April 24, 1996 and April 24,

1997. In fact, the only such motion Mr. Kingyon filed had no tolling effect

because the filing date postdated AEDPA’s limitations period by several years.

Mr. Kingyon is consequently not entitled to statutory tolling on this basis.

      Further, the district court properly determined that Mr. Kingyon has failed

to show that any other statutory factors—aside from the finality of the judgment

                                          6
on direct review—would have affected the start of the limitations clock. In other

words, Mr. Kingyon has alleged no facts demonstrating (1) that the State impeded

his filing; (2) that his case involves a right “newly recognized by the Supreme

Court and made retroactively applicable” on collateral review; or (3) that he could

only have discovered the “factual predicate” of his claims at a later date. See 28

U.S.C. §§ 2244(d)(1)(B)–(D). All facts and legal issues germane to his claims

have been known to him since 1984. Thus, sweeping statements of “newly

discovered evidence” and “manifest injustice,” without more, cannot defeat the

district court’s well-reasoned opinion in this regard. Cf. Clark v. Uchtman, 221

F. App’x 765, 767 (10th Cir. 2007) (reaching a similar conclusion when the

petitioner could cite no “new” rule of constitutional law or “new” evidence).

      Mr. Kingyon’s arguments also do not justify equitable tolling, which

requires a litigant to make clear “(1) that he has been pursuing his rights

diligently, and (2) that some [articulable] extraordinary circumstance stood in his

way.” 

(internal quotation marks omitted). “[G]arden

variety claim[s] . . . [are] not enough” in this context. 

marks omitted). The district court ascertained no facts supporting a finding that

Mr. Kingyon diligently pursued his rights or that any circumstances precluded

him from meeting AEDPA’s one-year deadline. We, too, conclude that no tolling

is warranted and consequently agree that his habeas petition is time-barred.




                                           7
      Mr. Kingyon has not meaningfully challenged the district court’s procedural

conclusion in his briefing before us. Panels of our court have previously

determined that such a failure vitiates an application for a COA. See Thomas v.

Jones, 530 F. App’x 794, 797 (10th Cir. 2013); see also Small v. Milyard, 488 F.

App’x 288, 291 (10th Cir. 2012) (concluding that a habeas petitioner failed to

clear Coppage’s “double hurdle” where his application “merely re-argue[d] the

substance” of claims asserted below). Nonetheless, even construed liberally, Mr.

Kingyon’s purported procedural “challenges” are meritless.

      First, Mr. Kingyon contends that he “[met] the Barefoot standard as to the

procedural question.” Aplt. Combined Br. at 2. Barefoot v. Estelle lends him no

succor regarding the procedural hurdle; it speaks to standards governing the

adjudication of the merits, establishing that a habeas petitioner must make a

substantial showing of the denial of a federal right, not a showing that he would

prevail on the merits of his claims. 

, 893 (1983), superseded on

other grounds by statute, 28 U.S.C. § 2253(c)(2). Next, Mr. Kingyon argues that

due process requires our “plenary review” when a state court has reached the

merits of an issue. Aplt. Combined Br. at 3. Setting aside the fundamental

factual defect of this argument—that is, the fact that the Kansas state courts did

not address the merits of his claims—this argument misstates the law. In

determining whether a COA should issue, we do not undertake a “full

consideration of the factual or legal bases adduced” by the petitioner. Miller-El,

                                          

. To do so would “in essence [be] deciding an appeal without

jurisdiction.” 

      Mr. Kingyon also claims that the district court’s invocation of the one-year

procedural bar is “a laches argument,” which he submits “must be plead[ed] in a

party’s responsive pleadings and not [by] the court.” Aplt. Combined Br. at 5.

To the extent that Mr. Kingyon argues that the State of Kansas may waive

AEDPA’s exhaustion requirement, he overlooks the fact it must do so

“expressly.” DeRosa v. Workman, 

, 1208 (10th Cir. 2012), cert.

denied, --- U.S. ----, 

(2013); see 28 U.S.C. § 2254(b)(3). With no

indication that the State has taken this step, Mr. Kingyon’s argument must fail.

      Mr. Kingyon’s remaining challenges to the district court’s judgment are

basic disagreements with various judicial dispositions that do not pertain to

timeliness. Indeed, throughout his lawsuit, Mr. Kingyon has reurged a slew of

seemingly unfounded arguments: (1) that Kansas courts lacked jurisdiction over

his case; (2) that he was convicted of violating an “unconstitutional” statute; (3)

that his imprisonment violates the Thirteenth Amendment; (4) that he was

wrongfully denied hearings; and (5) that “extraordinary circumstances” justify

relief. These attacks on his confinement lack evidentiary support and certainly do

not show that reasonable jurists could debate the district court’s procedural

resolution of this matter.




                                          9
      Ultimately, though the district court need not have addressed the merits of

Mr. Kingyon’s petition, it did so in unassailable fashion. We find it pellucid that

jurists of reason could not debate the correctness of the court’s conclusion that

Mr. Kingyon’s petition contains only a “restatement of claims, rehashing of

arguments, and disagreement with [prior judicial] findings.” R. at 70 (Order,

filed Nov. 12, 2013). Importantly, to prevail here, Mr. Kingyon must show that

reasonable jurists could debate the validity of his claims and the district court’s

procedural ruling. This he has not done; as such, the issuance of a COA is not

appropriate.

                                         III

      Finally, Mr. Kingyon has no constitutional right to counsel beyond his

direct appeal, and “generally appointment of counsel in a § 2254 proceeding is

left to the [district] court’s discretion.” Swazo v. Wyo. Dep’t of Corr. State

Penitentiary Warden, 

, 333 (10th Cir. 1994). Mr. Kingyon has not

established that the district court abused its discretion in denying his motion for

counsel, particularly given the meritlessness of his petition. See Anderson v.

Att’y Gen. of Kan., 

, 861 (10th Cir. 2005) (upholding a refusal to

appoint counsel where a habeas petitioner’s claims were meritless). He has not

shown—beyond groundless averments of manifest injustice—that denial of

counsel would “result in fundamental unfairness.” See Long v. Shillinger, 927




                                          

, 527 (10th Cir. 1991) (internal quotation marks omitted). As a result, he

is not entitled to court-appointed counsel.

                                         IV

      For the foregoing reasons, we DENY Mr. Kingyon’s request for a COA and

DISMISS this matter.

                                       Entered for the Court


                                       JEROME A. HOLMES
                                       Circuit Judge




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