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  • Doby v. Marr, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit denied David Earl Doby's request for a certificate of appealability and dismissed his appeal of the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Doby sought relief from his 1988 Colorado state court conviction. The district court dismissed the petition for lack of subject matter jurisdiction because it was filed after the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act had expired. The appellate court concluded that Doby did not demonstrate that the district court's ruling was debatable or subject to a different outcome, and therefore denied the certificate of appealability.

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    Filed: 1998-04-23 Precedential Status: Non-Precedential Docket: 97-1365

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    The United States Court of Appeals for the Tenth Circuit denied David Earl Doby's request for a certificate of appealability and dismissed his appeal of the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Doby sought relief from his 1988 Colorado state court conviction. The district court dismissed the petition for lack of subject matter jurisdiction because it was filed after the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act had expired. The appellate court concluded that Doby did not demonstrate that the district court's ruling was debatable or subject to a different outcome, and therefore denied the certificate of appealability.

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    11 views3 pages

    Doby v. Marr, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied David Earl Doby's request for a certificate of appealability and dismissed his appeal of the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Doby sought relief from his 1988 Colorado state court conviction. The district court dismissed the petition for lack of subject matter jurisdiction because it was filed after the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act had expired. The appellate court concluded that Doby did not demonstrate that the district court's ruling was debatable or subject to a different outcome, and therefore denied the certificate of appealability.

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    of 3

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    APR 23 1998

    PATRICK FISHER
    Clerk

    DAVID EARL DOBY,


    Petitioner - Appellant,
    v.

    No. 97-1365

    RICHARD MARR; ATTORNEY


    GENERAL FOR THE STATE OF
    COLORADO,

    (D.C. No. 97-M-1169)


    (D. Colo.)

    Respondents - Appellees.

    ORDER AND JUDGMENT*


    Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
    Petitioner David Earl Doby seeks a certificate of appealability to appeal the district
    courts decision dismissing his 28 U.S.C. 2254 petition for lack of subject matter
    jurisdiction. Petitioner also challenges the district courts order denying his petition to
    reopen and rehear the case. We conclude Petitioner has not made a substantial showing
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court generally
    disfavors the citation of orders and judgments; nevertheless, an order and judgment may
    be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
    submitted without oral argument.
    **

    of the denial of a constitutional right. Therefore, we deny his request for a certificate of
    appealability and dismiss the appeal.
    Petitioner is an inmate at the Centennial Correctional Facility in Canon City,
    Colorado. On June 5, 1997, Petitioner filed a petition for a writ of habeas corpus
    pursuant to 28 U.S.C. 2254 seeking relief from a 1988 Colorado state court conviction.
    As grounds for his petition, Petitioner alleged, inter alia, that his trial and appellate
    counsel were ineffective, that the trial court had no jurisdiction over his case, that his
    right to a speedy trial was violated, that his rights to substantive and procedural due
    process were violated, and that his right to equal protection was violated. The district
    court referred the case to a magistrate judge who issued an order to show cause why
    Petitioners request for a writ of habeas corpus should not be dismissed for failing to
    comply with the one-year limitation period provided for in the Antiterrorism and
    Effective Death Penalty Act of 1996. 28 U.S.C. 2244(d)(1). After considering
    Petitioners response, the magistrate recommended that the case be dismissed for lack of
    subject matter jurisdiction. The district court adopted the magistrates recommendation
    and dismissed Petitioners 2254 petition. On appeal, Petitioner requests, among other
    things, that we grant his certificate of appealability, reverse the district courts decision,
    and remand the case with instructions to grant his request for a writ of habeas corpus.
    We have reviewed Petitioners application for certificate of appealability, his brief,
    the district courts order, and the entire record before us. We conclude Petitioner has not
    2

    demonstrated that the district courts disposition of his 2254 petition is debatable,
    reasonably subject to a different outcome on appeal, or otherwise deserving of further
    proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (substantial
    showing of denial of constitutional right shown by demonstrating that; (1) issues raised
    are debatable among jurists, (2) an appellate court could resolve issues differently, or (3)
    the questions deserve further proceedings.). Accordingly, we DENY Petitioners motion
    for a certificate of appealability and DISMISS his appeal.

    Entered for the Court,

    Bobby R. Baldock
    Circuit Judge

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