Amoneo Lee v. Dan Schnurr; Derek Schmidt

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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AMONEO LEE,
Petitioner - Appellant,
v.
DAN SCHNURR; DEREK SCHMIDT,
Respondents - Appellees.
No. 21-3098
(D.C. No. 5:20-CV-03231-SAC)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, KELLY, and McHUGH, Circuit Judges.
_________________________________
Petitioner-Appellant Amoneo Lee, a state inmate represented by counsel, seeks a
Certificate of Appealability (COA) to appeal from the district court’s dismissal of his
habeas petition, 28 U.S.C. § 2254, as time barred. See Lee v. Schnurr, No. 20-3247,
2021 WL 1840054, at *3 (D. Kan. May 7, 2021). Mr. Lee was sentenced to life
imprisonment without the possibility of parole for 40 years, otherwise known as “a hard
40 sentence.” He argues that reasonable jurists could debate whether the limitations
period of 28 U.S.C. § 2244(d)(1) should be equitably tolled because he is actually
innocent of the sentence, relying upon Alleyne v. United States, 570 U.S. 99 (2013). He
* This order is not binding precedent except under the doctrines of law of the case,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.
FILED
United States Court of Appeals
Tenth Circuit
September 9, 2021
Christopher M. Wolpert
Clerk of Court
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also contends that Alleyne should be applied retroactively. Exercising jurisdiction under
28 U.S.C. § 1291, we deny a COA and dismiss the appeal.
To obtain a COA, Mr. Lee must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court rejected
the petition on procedural grounds, the petitioner must demonstrate not only that
reasonable jurists would find the district court’s resolution of the procedural issue
debatable, but also whether the petition states a valid constitutional claim regarding the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Lee
argues that the limitation period should be equitably tolled based on his claim that he is
actually innocent of the sentence and that Alleyne should be applied retroactively.
Background
In 1997, Mr. Lee was sentenced after a jury convicted him of first-degree murder
and criminal possession of a firearm, and his convictions were affirmed on direct appeal.
State v. Lee, 977 P.2d 263 (Kan. 1999). The Kansas courts have rejected his claim that
his sentence is unconstitutional given judge-found aggravating facts that increased his
sentence, most recently in Lee v. State, 419 P.3d 81 (Kan. Ct. App. 2018) (unpublished),
review denied (Kan. Feb. 28, 2019).
Discussion
Mr. Lee argues that the one-year limitation period should be equitably tolled based
on his claim of actual innocence. Aplt. Br. at 5, 10. Equitable tolling or a fundamental
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miscarriage of justice in the form of actual innocence may excuse a time bar. Compare
Holland v. Florida, 560 U.S. 631, 649 (2010), with McQuiggin v. Perkins, 569 U.S. 383,
392–94 (2013). For equitable tolling to apply, Mr. Lee must show that an “‘extraordinary
circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Mr. Lee’s only alleged
extraordinary circumstance is Alleyne, which does not qualify. United States v. Hopson,
589 F. App’x 417, 418 (10th Cir. 2015) (unpublished).1
To qualify for a miscarriage of justice exception, he must show an actual
innocence that means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). Mr. Lee acknowledges that we have held that a person
cannot be innocent of a non-capital sentence given a statutory sentence enhancement.
United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993). We have concluded that
such claims are not reasonably debatable. See Jones v. Martin, 622 F. App’x 738, 739–
40 (10th Cir. 2015) (unpublished). This claim fares no better under more recent
decisions. Brooks-Gage v. Martin, No. 21-7008, 2021 WL 3745199, at *3 (10th Cir.
Aug. 25, 2021); see also, e.g., Reeves v. Fayette SCI, 897 F.3d 154, 160 (3d Cir. 2018);
United States v. Jones, 758 F.3d 579, 584–86 (4th Cir. 2014).
Moreover, Alleyne’s status as non-retroactive on collateral review is “a settled
rule,” United States v. Jackson, 995 F.3d 1308 (11th Cir. 2021) (en banc) (Pryor, C.J.,
1 We cite this and other unpublished dispositions only for their persuasive value.
10th Cir. R. 32.1.
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respecting denial of reh’g en banc), and one observed by all 11 circuit courts to have
considered it, including this one, see United States v. Salazar, 784 F. App’x 579, 584
(10th Cir. 2019) (unpublished).
We DENY the COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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