Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 25, 2016 _ Elisabeth A. Shumaker Clerk of Court JEFFREY S. COLLIER, Petitioner - Appellant, v. No. 16-3020 (D.C. No. 5:15-CV-03281-SAC-DJW) RAY ROBERTS; ATTORNEY (D. Kan.) GENERAL FOR THE STATE OF KANSAS, Respondents - Appellees. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ Jeffrey Collier petitions this court for a Certificate o
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 25, 2016 _ Elisabeth A. Shumaker Clerk of Court JEFFREY S. COLLIER, Petitioner - Appellant, v. No. 16-3020 (D.C. No. 5:15-CV-03281-SAC-DJW) RAY ROBERTS; ATTORNEY (D. Kan.) GENERAL FOR THE STATE OF KANSAS, Respondents - Appellees. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ Jeffrey Collier petitions this court for a Certificate of..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEFFREY S. COLLIER,
Petitioner - Appellant,
v. No. 16-3020
(D.C. No. 5:15-CV-03281-SAC-DJW)
RAY ROBERTS; ATTORNEY (D. Kan.)
GENERAL FOR THE STATE OF
KANSAS,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Jeffrey Collier petitions this court for a Certificate of Appealability (“COA”)
to challenge the denial of his 28 U.S.C. § 2254 habeas petition. Because Collier’s
petition is time-barred, we deny a COA and dismiss the appeal.
I
In 1994, Collier was convicted of premeditated first-degree murder, felony
murder, and aggravated robbery. In 2000, he filed a petition for post-conviction
relief in Kansas state court alleging ineffective assistance of counsel. The petition
was denied on all grounds. In 2013, Collier filed another petition for post-conviction
*
This order and judgment is not binding precedent, except under the doctrines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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
relief, which was also denied. On December 28, 2015, Collier filed a § 2254 habeas
petition in federal district court. A magistrate judge recommended that the petition
be dismissed on the grounds that it was time-barred under the Anti-Terrorism and
Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. See
§ 2244(d). The district court adopted the recommendation, dismissed the petition,
and denied a COA.
II
When a district court denies a COA on a procedural ground, we grant relief
only if “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).
AEDPA establishes a one-year limitations period for filing federal habeas corpus
petitions. § 2244(d). However, equitable tolling is available if a petitioner: (1) is
actually innocent; (2) shows that extraordinary circumstances prevented the
petitioner from timely filing the petition; or (3) actively pursued legal remedies
within the time limit, but filed a defective pleading. Gibson v. Klinger,
232 F.3d
799, 808 (10th Cir. 2000).
Collier does not dispute that § 2244 applies to his petition, rendering it
untimely. See § 2244(d). And Collier makes no argument that would justify
equitable tolling. He does not argue that new evidence suggests he was actually
innocent, see Miller v. Marr,
141 F.3d 976, 978 (10th Cir. 1998), nor does he allege
that extraordinary circumstances prevented timely filing or that he actively pursued
his judicial remedies but filed a defective pleading during the statutory period, see
2
Gibson, 232 F.3d at 808. Even with the liberal construction afforded to Collier’s pro
se pleadings, it is not the job of the court to assume the role of advocate for a pro se
litigant and to create arguments on his behalf. Hall v. Bellmon,
935 F.2d 1106, 1110
(10th Cir. 1991).
III
Because Collier makes no showing from which to conclude that the district
court erred in its procedural ruling, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
3