APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS*fn1 (D.C. NO. 5:11-CV-03102-SAC)
The opinion of the court was delivered by: Hartz, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.
Applicant David Woodward, a Kansas state prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the denial of his application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of application). The district court dismissed the application as untimely. Applicant's principal argument is that the limitations period for filing the application has not yet expired because the state court has yet to rule on a post-conviction discovery motion that he filed in 1994. Because we hold that a post-conviction discovery motion does not toll the limitations period for filing a § 2254 application, we deny the application for a COA and dismiss the appeal.
In 1991 Applicant pleaded guilty in Kansas state court to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a child, and felony murder in connection with the killing of a five-year-old child and the sexual molestation of an eight-year-old child. See State v. Woodward, 202 P.3d 15, 17 (Kan. 2009). The Kansas Supreme Court affirmed Applicant's sentence on direct appeal on January 21, 1994. See id.
Soon thereafter, on April 4, 1994, Applicant filed a motion in state court requesting that DNA testing be conducted on hair samples in his case so that the results could be compared to the results of DNA tests of a man allegedly involved in the murder to which Applicant pleaded guilty. It is unclear whether the April 4 motion has ever been ruled upon. See State v. Woodward, 248 P.3d 280, 2011 WL 1002957, at *1 (Kan. Mar. 18, 2011) (unpublished).
On September 18, 1995, Applicant filed a motion in state district court for post-conviction relief under Kan. Stat. Ann. § 60-1507 (1976), seeking withdrawal of his guilty pleas. The court denied the motion, and the Kansas Court of Appeals affirmed. On March 17, 1999, the Kansas Supreme Court denied review. See Woodward v. State, 975 P.2d 281, 281 n.24 (Kan. Jan. 8, 1999) (unpublished table decision).
Eight years later, on April 9, 2007, Applicant filed a § 2254 application in federal district court. But he later withdrew that application, returning instead to state court, where he filed on June 21 a motion to vacate his guilty plea and dismiss the indictment based on newly discovered evidence. On March 6, 2009, the Kansas Supreme Court affirmed the denial of the motion. See Woodward, 202 P.3d 15.
Two months later Applicant filed another motion in state district court, this time seeking a hearing on the results of DNA testing and vacation of his guilty plea, conviction, and indictment. The Kansas Supreme Court affirmed the denial of the motion, see Woodward, 248 P.3d 280, 2011 WL 1002957, and the United States Supreme Court denied Applicant's petition for a writ of certiorari on June 6, 2011. See Woodward v. Kansas, 131 S. Ct. 2972 (2011).
Meanwhile, on May 24, 2011, Applicant filed in the United States District Court for the District of Kansas the present § 2254 application. The application claimed (1) that the prosecution had charged Applicant in violation of an immunity agreement, suppressed exculpatory evidence, used false evidence, and violated the plea agreement; (2) that the state preliminary-hearing judge had relied on evidence not in the record; (3) that the state district judge had abused his discretion by failing to construe liberally his state post-conviction motion and by denying him an evidentiary hearing on the motion; (4) that he was actually innocent of the crimes; (5) that his confession to the murder was coerced; (6) that his guilty pleas were not knowing and voluntary; (7) that his trial and appellate counsel rendered ineffective assistance; and (8) that Kan. Stat. Ann. § 21-2512 (2012), which authorizes post-conviction motions for DNA testing in certain circumstances, is unconstitutional.
The district court dismissed the application as untimely because it was filed after the applicable one-year limitations period. See 28 U.S.C. § 2244(d)(1). It rejected Applicant's arguments that his claims were timely either because of equitable tolling or under the Supreme Court's decision in Jimenez v. Quarterman, 555 U.S. 113 (2009). Applicant then filed a motion asking the district court to reinstate the application, asserting that his § 2254 application was timely because no court had ever ...