Leeper (ID 44649) v. Kansas, State of et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for a certificate of appealability 10 is denied. Petitioner is granted to and including January 5, 2018, to submit either the appellate fees of $505.00 or a motion to proceed in forma pauperis. Signed by U.S. Senior District Judge Sam A. Crow on 12/05/17. Mailed to pro se party Carl D. Leeper by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CARL D. LEEPER,
Petitioner,
v.

CASE NO. 17-3157-SAC

WARDEN SAM CLINE,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On November 7, 2017, the Court dismissed this matter, finding
the matter is time-barred and that petitioner failed to provide
adequate grounds for equitable tolling.
Petitioner has filed a Notice of Appeal (Doc. #9) and a motion
for certificate of appealability (COA)(Doc. #10).
The Motion for a Certificate of Appealability
Where a district court enters a final order adverse to a habeas
corpus petitioner, it must issue or deny a COA. Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right”, and, if the COA issues, the
Court must identify the specific issue or issues that warrant
additional review. 28 U.S.C. § 2253. A petitioner meets that standard
by showing that the issues presented are debatable among jurists, that
a court could resolve the issues differently, or that the claims
deserve additional consideration. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000)(citation omitted). Where, as here, the Court’s ruling
is based upon procedural grounds, the petitioner must show that

“jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. at 484.
The Court has examined the record and concludes that no COA should
issue. The petition was denied on a procedural ground, the failure
to timely file the petition, and petitioner has not shown that the
denial on that basis is reasonably debatable. Likewise, petitioner
has failed to present any reliable new evidence that might excuse his
failure to timely file.
Fee Status on Appeal
Petitioner submitted the filing fee shortly after he commenced
this matter. Because he has not submitted the appellate filing and
docketing fee of $505.00, the Court will direct him to submit either
the fee or a motion to proceed in forma pauperis.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
a certificate of appealability (Doc. #10) is denied.
IT IS FURTHER ORDERED petitioner is granted to and including
January 5, 2018, to submit either the appellate fees of $505.00 or
a motion to proceed in forma pauperis.
IT IS SO ORDERED.
DATED:

This 5th day of December, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge