FILED
United States Court of Appeals
Tenth Circuit
June 30, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JONATHAN LEE RODERICK,
Petitioner-Appellant, No. 09-8000
v. (D. of Wyo.)
BRUCE A. SALZBURG, Attorney (D.C. No. 1:08-CV-00183-CAB)
General, State of Wyoming, and
ROBERT O. LAMPERT, Director,
Wyoming Department of Corrections,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Jonathan Lee Roderick, a state prisoner appearing pro se, 1 seeks a
certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to
appeal the order of the district court denying his petition for a writ of habeas
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because Roderick proceeds pro se, we construe his pleadings liberally.
Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005).
corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has
not established that “jurists of reason could conclude that the District Court’s
dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel,
529 U.S. 473, 485 (2000), we DENY a COA and DISMISS the appeal.
I. Background
Roderick was convicted in Wyoming state court of felony murder,
aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme
Court affirmed Roderick’s conviction in 1993, except as to the judgment and
sentence, which it modified by vacating a fifteen to twenty-five year term for
aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo. 1993).
Roderick then filed a state court petition for post-conviction relief in 2007.
That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick
filed a Petition for Writ of Review, which the Wyoming Supreme Court also
denied.
Roderick filed the instant § 2254 petition in federal district court in July
2008. The district court concluded the petition was time-barred and dismissed the
case. See 28 U.S.C. § 2244(d). This appeal followed. 2
2
We conclude Roderick timely filed his notice of appeal under the
applicable rules. See Fed. R. App. P. 4(c)(1); see also Price, 420 F.3d at
1164–67.
-2-
II. Discussion
Where a district court dismisses a § 2254 petition on procedural grounds, a
petitioner seeking a COA must establish that reasonable jurists would find it
debatable both whether the district court was correct in its procedural ruling, and
whether the petition states a valid claim of the denial of a constitutional right.
Slack, 529 U.S. at 484–85; Fleming v. Evans, 481 F.3d 1249, 1254–56 (10th Cir.
2007). If a procedural bar is present and the district court correctly invokes it to
dispose of the case, “a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to
proceed further.” Slack, 529 U.S. at 484. Because reasonable jurists could not
debate the propriety of the district court’s dismissal of this case as time-barred,
we decline to issue a COA.
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes a
one-year statute of limitations on habeas petitions by state prisoners.
§ 2244(d)(1). Because AEDPA became effective on April 24, 1996—after
Roderick’s state conviction became final—Roderick had until April 24, 1997 to
file a timely petition for a writ of habeas corpus. See Gibson v. Klinger, 232 F.3d
799, 803 (10th Cir. 2000) (holding the one-year limitations period began to run on
April 24, 1996 for prisoners whose convictions became final before the effective
date of AEDPA).
-3-
Roderick admits that he filed his § 2254 petition after the AEDPA time
limitation had expired. He asks us, however, to equitably toll the AEDPA
limitation for three reasons, (1) excusable neglect, (2) his lack of knowledge of
the legal process available to him or of AEDPA, and (3) his placement in
facilities with few law library materials. He complains that he was only fifteen
years old when he was convicted of his crime, and that he had no knowledge of
the law and a very limited understanding of the proceedings. He argues the
interests of justice demand the rehearing of his case.
The AEDPA statute of limitations is subject to equitable tolling in cases
where extraordinary circumstances outside of the prisoner’s control lead to delay
in filing. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Equitable
tolling is appropriate, however, only “when an inmate diligently pursues his
claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” Id.; Yang v. Archuleta, 525
F.3d 925, 928 (10th Cir. 2008) (“Generally, equitable tolling requires a litigant to
establish two elements: ‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.’” (citation omitted)).
We have limited equitable tolling of the one-year limitations period to “rare and
exceptional” circumstances. Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir.
2003); Wallace v. Kato, 549 U.S. 384, 396 (2007) (“Equitable tolling is a rare
-4-
remedy to be applied in unusual circumstances, not a cure-all for an entirely
common state of affairs.”); Gibson, 232 F.3d at 808.
Reasonable jurists could not debate the propriety of the district court’s
determination that equitable tolling was inappropriate in this case. Indeed,
Roderick’s arguments do not excuse his lengthy delay in seeking federal relief.
Instead, we have repeatedly rejected equitable tolling arguments along these lines.
For example, in Marsh we held that “ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing.” 223 F.3d
at 1220–21 (internal quotation marks and citation omitted). Roderick offers us no
reason to depart from the general rule in his case. Moreover, “[s]imple excusable
neglect is not sufficient.” Gibson, 232 F.3d at 808.
Additionally, Roderick’s conclusory claim as to inadequate access to legal
materials is insufficient to account for the long delay. See id.; see also Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998) ( “[Petitioner] has provided no
specificity regarding the alleged lack of access and the steps he took to diligently
pursue his federal [habeas] claims. It is not enough to say that the [state prison]
facility lacked all relevant statutes and case law. . . . It is apparent that
[petitioner] simply did not know about the limitation in the AEDPA until it was
too late.” (citations omitted)). “[A] petitioner must diligently pursue his federal
habeas claims; a claim of insufficient access to relevant law, such as AEDPA, is
-5-
not enough to support equitable tolling.” Gibson, 232 F.3d at 808; see also Yang,
525 F.3d at 930; cf. Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009). 3
Consequently, Roderick’s failure to timely pursue his claims is not excused
by excusable neglect, his ignorance of the law, or alleged deficiencies in the
prison law libraries. Accordingly, this case does not present one of those “rare
and exceptional circumstances” in which the untimely filing of a federal habeas
petition should be equitably excused. Gibson, 232 F.3d at 808.
III. Conclusion
Because no jurists of reason would find it debatable whether the district
court was correct in its procedural ruling, we deny Roderick’s application for a
COA and dismiss this appeal.
Roderick’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
3
To the extent Roderick complains that he could not afford counsel to
assist him, we note that he has no constitutional right to counsel for habeas
appeals. See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008), cert.
denied, 129 S. Ct. 134 (2008); United States v. Prows, 448 F.3d 1223, 1229 (10th
Cir. 2006).
-6-