Charvelle Lamont Robinson v. Hazel Petersen

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
CHARVELLE LAMONT ROBINSON,
Petitioner - Appellant,
v.
HAZEL PETERSEN,
Respondent - Appellee.
No. 22-3087
(D.C. No. 5:22-CV-03031-SAC)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Charvelle Robinson, a Kansas state prisoner proceeding pro se,1 requests a
certificate of appealability (“COA”) to appeal the dismissal of his 28 U.S.C. § 2254
habeas petition. The district court’s ruling is not reasonably debatable, so we deny a COA
and dismiss the appeal.
Robinson’s state conviction became final on August 27, 2008. So by the time
Robinson filed his petition on February 13, 2022, the one-year limitations period set out
* This order is not binding precedent except under the doctrines of law of the case,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.
1 Since Robinson is a pro se litigant, we liberally construe his filings, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), without acting as his advocate, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
FILED
United States Court of Appeals
Tenth Circuit
August 9, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-3087 Document: 010110722217 Date Filed: 08/09/2022 Page: 1

-- 1 of 3 --

2
in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) had long since expired.
See 28 U.S.C. § 2244(d).
Noting this, the district court ordered Robinson to show cause as to why his
petition should not be dismissed as untimely. In response, Robinson argued that he was
entitled to equitable tolling because of his mental-health issues. He also argued that his
petition should not be deemed time-barred because he is actually innocent. Specifically,
he contended that if the jurors had heard from two additional witnesses at trial, the
outcome of his trial would have been different. He requested an evidentiary hearing on
his actual-innocence argument.
The district court concluded that neither equitable tolling nor Robinson’s claim of
actual innocence extended the limitations period. With regard to equitable tolling, the
district court noted that we have held that equitable tolling based on mental incapacity is
not justified when “the party urging tolling has been able to pursue legal action during the
period of his or her alleged incapacity.” Smith v. Saffle, 28 F. App’x 759, 760 (10th Cir.
2001). Robinson filed motions for relief in state court in April 2015 and March 2018 and
appealed both denials of those motions. So, the district court concluded that there was
“more than 365 days between August 27, 2008, and February 13, 2022, in which
[Robinson] was mentally capable of pursuing his federal habeas claims.” ROA at 87–88.
As for Robinson’s actual-innocence argument, the district court noted that even if
the two witnesses had testified at trial, the credibility and value of their testimony would
have been undercut by conflicting evidence. Thus, the court was unconvinced that, after
consideration of all the evidence, (including Robinson’s two witnesses) Robinson had
Appellate Case: 22-3087 Document: 010110722217 Date Filed: 08/09/2022 Page: 2

-- 2 of 3 --

3
met his burden in showing that any reasonable juror would have reasonable doubt about
his guilt. ROA at 89–90. The court therefore dismissed his petition as untimely and
denied a COA.2
To be entitled to a COA, Robinson must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon review of Robinson’s appellate brief and application for COA, the record,
and the district court’s thorough and well-reasoned order, we conclude that Robinson is
not entitled to a COA. No reasonable jurist would deem Robinson’s § 2254 petition as
timely. And the record supports the district court’s conclusion that Robinson failed to
demonstrate entitlement to equitable tolling and failed to present evidence warranting
application of the actual-innocence exception. We therefore deny his request for a COA
and dismiss this matter.
Entered for the Court
Gregory A. Phillips
Circuit Judge
2 The district court granted Robinson’s motion to proceed in forma pauperis on
appeal.
Appellate Case: 22-3087 Document: 010110722217 Date Filed: 08/09/2022 Page: 3

-- 3 of 3 --