FILED
United States Court of Appeals
Tenth Circuit
February 9, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-5105
v. (D.C. Nos. 09-CV-00278-JHP-FHM
and 4:06-CR-00067-JHP-1)
ANTHONY JOHN COLLINS, a/k/a (N.D. Okla.)
Tony,
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Defendant-Appellant Anthony John Collins, a federal inmate, seeks a
certificate of appealability (COA) allowing him to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The district court denied the motion as time-barred under the one-year limitation
period of § 2255(f). Aplt. App. 26-30. Because we determine that Mr. Collins
has not made “a substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84,(2000), we deny a
COA and dismiss the appeal.
On June 30, 2006, Mr. Collins pled guilty to conspiracy to possess with
intent to distribute controlled substances (Case No. 06-CR-00033) and possession
of a firearm in furtherance of drug trafficking (Case No. 06-CR-00067). He was
sentenced to 168 months’ imprisonment in Case No. 06-CR-00033 to run
consecutively to 60 months’ imprisonment in Case No. 06-CR-00067. He was
also ordered to serve five years’ supervised release and to pay a fine of $1,500 in
each case. Mr. Collins appealed the sentence in the conspiracy case, and this
court affirmed. United States v. Collins, 267 F. App’x 744 (10th Cir.), cert.
denied, 128 S. Ct. 2459 (2008). He did not appeal the conviction or sentence in
the firearm case.
Under 28 U.S.C. § 2255(f)(1), Mr. Collins had one year from “the date on
which the judgment of conviction bec[ame] final” to file his motion. The
judgment of conviction in the firearm case was entered on November 17, 2006.
Doc. 30. The judgment of conviction became final ten days later on December 4,
2006 when his time for direct appeal expired. Fed. R. App. P. 4(b)(1)(A)(i); Fed.
R. App. P. 26(a)(2) (excluding weekends and holidays from time computation);
Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Mr. Collins had until
December 4, 2007 to file his motion. Because Mr. Collins did not file his § 2255
motion until May 13, 2009, the district court’s determination that it was
time-barred is not reasonably debatable.
Relying on § 2255(f)(4), Mr. Collins argues that his motion is timely filed
because the limitation period should run from “the date on which the facts
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supporting the claim or claims presented could have been discovered through the
exercise of reasonable diligence,” here March 2009, when he discovered that his
counsel was ineffective. In support of this claim, Mr. Collins explains that a 12-
gauge shotgun was found in the closet of his room, which contained suspected
controlled substances, chemicals and drug paraphernalia. Aplt. App. 14. A
working methamphetamine lab was found in a shed apart from the house. Id.
According to Mr. Collins, there was an insufficient factual basis for his plea
because the firearm was not in furtherance of a drug trafficking crime; he merely
possessed the firearm for hunting rabbits as he told one of the agents. See United
States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2001) (“in furtherance” element
requires that the gun promote or advance unlawful drug activity).
Though Iiland is readily distinguishable based upon its facts, see United
States v. Mitten, —F.3d—, 2010 WL 174218, at *9 (7th Cir. Jan. 20, 2010), we
need not go down that path. Section 2255(f)(4) speaks to discovery of facts
supporting a claim, not a failure to appreciate the legal significance of those facts.
See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (ignorance of the law
generally will not excuse an untimely § 2255 filing). Thus, this case is
distinguishable from United States v. Lopez, 194 F. App’x 511, 513 (10th Cir.
2006), where we remanded for the district court to determine at what point the
defendant should have discovered that his attorney did not file a § 2255 motion.
See also United States v. Weathersby, Nos. 98-20076-30 & 08-2081, 2008 WL
-3-
3884320, at *1 (D. Kan. Aug. 18, 2008) (once defendant learned that counsel
failed to file a § 2255 motion, the limitation period under § 2255(f)(4) began
running). It is also distinguishable from Johnson v. United States, 544 U.S. 295,
310 (2005), where the Court held that § 2255(f)(4) applied to vacatur of a state
conviction used to enhance a federal sentence, provided the defendant pursued
vacatur diligently after the imposition of the federal sentence. All of these
situations involve learning about external facts—counsel’s failure to file a motion
or the vacatur of a state conviction. In contrast, this case involves understanding
the legal significance of historical facts.
The district court’s conclusion that equitable tolling does not apply also is
not reasonably debatable. Equitable tolling requires a petitioner to show
extraordinary circumstances and diligence. Lawrence v. Florida, 549 U.S. 327,
336 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Extraordinary
circumstances might exist when a litigant has filed a defective pleading within the
limitations period or has been actively misled so as to miss the limitations period.
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Mr. Collins contends
that he only learned of his ineffective assistance of counsel claim when he was
able to hire new counsel and that he filed his motion promptly thereafter. Yet we
have repeatedly held that a lack of awareness of the law or lack of assistance in
collateral review does not constitute the type of extraordinary circumstances
warranting equitable tolling. See Yang v. Archuleta, 525 F.3d 925, 929-30 (10th
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Cir. 2008); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); Marsh, 223
F.3d at 1220.
We DENY a COA and IFP status, and we DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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