Chrisman v. Benzon

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
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THOMAS JOSEPH CHRISMAN,

Petitioner - Appellant,

v.

LARRY BENZON,

Respondent - Appellee.

No. 19-4137
(D.C. No. 2:17-CV-00985-TC)
(D. Utah)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
*

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Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges.
**

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Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
District of Utah asserting claims of ineffective assistance of counsel, prosecutorial
misconduct, actual innocence based on newly discovered evidence, and double
jeopardy. The district court dismissed Petitioner’s § 2254 habeas petition as untimely
and denied Petitioner a certificate of appealability. Exercising jurisdiction under 28

*
This order is not binding precedent, except under the doctrines of law of the case, res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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
FILED
United States Court of Appeals
Tenth Circuit

March 26, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-4137 Document: 010110325198 Date Filed: 03/26/2020 Page: 1

2

U.S.C. § 2253(a), we deny Petitioner a certificate of appealability and dismiss
Petitioner’s appeal.
If the district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a certificate of appealability
will issue when the petitioner shows “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right” and “ jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). The petitioner must satisfy
both parts of this threshold inquiry before we can hear the merits of the appeal. Gibson
v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).
Here, the district court dismissed Petitioner’s habeas petition as time-barred.
After carefully reviewing Petitioner’s brief, the district court’s order of dismissal, and
the record on appeal, we agree with the district court that Petitioner’s claims are
untimely. Petitioner’s attempt to show actual innocence is without support in the
record, and Petitioner raises no other grounds supporting equitable tolling. See Bullock
v. Franklin, 201 F. App’x 644, 645 (10th Cir. 2006) (unpublished) (denying a
certificate of appealability when claims of actual innocence are not supported by the
record). For substantially the same reasons set forth in the district court’s order, we
hold that no reasonable jurist would find it “debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 478.

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Accordingly, we GRANT Petitioner’s motion to proceed in forma pauperis,
DENY Petitioner a certificate of appealability, and DISMISS this appeal.

Entered for the Court

Bobby R. Baldock
Circuit Judge
Appellate Case: 19-4137 Document: 010110325198 Date Filed: 03/26/2020 Page: 3