Resinger v. Farris

FILED
United States Court of Appeals
Tenth Circuit
May 5, 2020
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARLIN RESINGER, III,
Petitioner - Appellant,
v.
JIM FARRIS, Warden
*
,
Respondent - Appellee.
No. 20-7009
(D.C. No. 6:19-CV-00161-JHP-KEW)
(E.D. Okla.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
This matter is before the court on Marlin Resinger III’s request for a
certificate of appealability (“COA”). Resinger seeks a COA so he can appeal the
district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas
petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from
a final order denying habeas corpus relief unless the petitioner first obtains a
COA); id. § 2244(d) (setting out a one-year statute of limitations as to a habeas
corpus petitions). Because Resinger has not “made a substantial showing of the
*
Pursuant to Fed. R. App. P. 43(c)(2) Mike Bolt is replaced by Jim Farris
as Warden of the Mack Alford Correctional Center.
Appellate Case: 20-7009 Document: 010110343104 Date Filed: 05/05/2020 Page: 1

denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for
a COA and dismisses this appeal.
On August 1, 2006, Resinger pleaded guilty to two of counts First Degree
Murder and one count of First Degree Arson. The convictions became final ten
days later on August 11, 2006, because Resinger did not seek to timely withdraw
his plea or seek a direct appeal to the Oklahoma Court of Criminal Appeals. See
Okla. Stat. tit. 22, Ch.18 App. Rule 4.2; Okla. Stat. tit. 22, § 1051. Pursuant to
28 U.S.C. § 2244(d)(1), the § 2244 limitations period for Resinger to file a § 2254
petition began to run on August 12, 2006, and expired on August 12, 2007. See
Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011).
Resinger filed the instant § 2254 habeas petition on May 21, 2019, almost
twelve years after the limitations period expired. The district court dismissed
Resinger’s petition as untimely, concluding as follows: (1) Resinger’s state court
application for post-conviction relief, which was filed July 25, 2017, did not
entitle him to § 2244(d)(2) statutory tolling because it was not filed until after the
limitations period already expired, see May v. Workman, 339 F.3d 1236, 1237
(10th Cir. 2003)
2
; (2) Resinger’s attempt to overcome the limitations period
2
In so doing, the district court rejected the assertion that the mere fact the
state trial court considered Resinger’s 2017 post-conviction motion on the merits
created a new factual predicate for purposes of § 2244(d)(1)(D). This conclusion
is undeniably correct. By its plain language, § 2244(d)(1)(D) is directed to when
(continued...)
-2-
Appellate Case: 20-7009 Document: 010110343104 Date Filed: 05/05/2020 Page: 2

through a showing of actual innocence failed because such a claim, which was
based exclusively on his self-serving testimony during state post-conviction
proceedings was not colorable, see Parks v. Cline, 786 F. App’x 759, 763 (10th
Cir. 2019) (unpublished disposition cited solely for its persuasive value); and
(3) Resinger was not entitled to equitable tolling because, inter alia, he failed to
demonstrate that he diligently pursued his rights, see Lawrence v. Florida, 549
U.S. 327, 336 (2007).
Resinger seeks a COA so he can appeal the district court’s dismissal of his
§ 2254 petition. The granting of a COA is a jurisdictional prerequisite to
Resinger’s appeal from the denial of his § 2254 petition. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). To be entitled to a COA, Resinger must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
2
(...continued)
the factual predicate of a petitioner’s claim or claims could have been discovered
through the exercise of due diligence. “A factual predicate constitutes the vital
facts underlying those claims.” Purkey v. Kansas, 281 F. App’x 824, 827 (10th
Cir. 2008) (unpublished disposition cited only for its persuasive value) (quotation
omitted). “[T]he limitations period begins to run when the petitioner knows of
the facts giving rise to the habeas claim,” or could have known, irrespective of
whether he “understand[s] the legal significance of those facts.” Klein v.
Franklin, 437 F. App’x 681, 684 (10th Cir. 2011) (unpublished disposition cited
only for its persuasive value). To the extent Resinger’s habeas petition, and his
brief on appeal, could be read as arguing it is the facts developed during the state-
court evidentiary hearing that constitute the new factual predicate for purposes of
§ 2244(d)(1)(D), that assertion fails because, as noted by the respondent warden
in his filings below, the record makes clear these “facts” were known to Resinger
at the time of his guilty pleas.
-3-
Appellate Case: 20-7009 Document: 010110343104 Date Filed: 05/05/2020 Page: 3

§ 2253(c)(2). That is, he must demonstrate “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.” Id. (quotations omitted). When a district
court dismisses a § 2254 petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). In evaluating whether Resinger has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.
Although Resinger need not demonstrate his appeal will succeed to be entitled to
a COA, he must “prove something more than the absence of frivolity or the
existence of mere good faith.” Id.
Having undertaken a review of Resinger’s appellate filings, the district
court’s order, and the entire record before this court pursuant to the framework
set out by the Supreme Court in Miller-El, we conclude Resinger is not entitled to
a COA. The district court’s resolution of Resinger’s petition is not reasonably
subject to debate. In particular, this court notes it has closely reviewed the entire
transcript of the evidentiary hearing held in Resinger’s state post-conviction
-4-
Appellate Case: 20-7009 Document: 010110343104 Date Filed: 05/05/2020 Page: 4

proceedings and, like the district court, concludes Resinger’s testimony does not
come close to satisfying the standard for establishing a viable assertion of actual
innocence. Accordingly, this court DENIES Resinger’s request for a COA and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-5-
Appellate Case: 20-7009 Document: 010110343104 Date Filed: 05/05/2020 Page: 5