FILED
United States Court of Appeals
Tenth Circuit
February 24, 2015
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1344
(D.C. Nos. 1:13-CV-02378-WYD and
LELAND HINES, 1:08-CR-00165-WYD-1)
(D. Colo.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Appellant Leland Hines seeks a certificate of appealability to appeal the district
court’s dismissal of his 28 U.S.C. § 2255 habeas petition as time-barred.
In 2010, Appellant pled guilty to one count of armed robbery in violation of 18
U.S.C. § 2113(a) and (d) and one count of using a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). On September 27, 2010, he was sentenced to a total
sentence of 106 months’ imprisonment. Appellant did not file a direct appeal of his
conviction and sentence.
*
This order is not binding precedent except under the doctrines of law of the case,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.
On August 30, 2013, Appellant filed a motion under § 2255 seeking resentencing
based on the Supreme Court’s recent decision in Alleyne v. United States, 570 U.S. 1
(2013). In his habeas petition, he acknowledged that his judgment of conviction became
final in 2010. However, he asserted that the one-year statute of limitations for habeas
petitions should not bar his § 2255 motion because he was filing this motion under §
2255(f)(3), which provides that the one-year limitation period may begin to run on “the
date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.”
The district court concluded that Appellant’s motion was untimely under
§ 2255(f). The court noted that § 2255(f)(3) applies only when a constitutional right (1)
has been newly recognized by the Supreme Court, and (2) has been made retroactively
applicable to cases on collateral review. While the first of these elements is satisfied by
the Supreme Court’s Alleyne decision, the right recognized in Alleyne has not been made
retroactively applicable to cases on collateral review. Accordingly, § 2255(f)(3) does not
apply, and Appellant’s motion was untimely under § 2255(f). The district court also
concluded that Appellant had not demonstrated an entitlement to equitable tolling, and the
court therefore dismissed the § 2255 motion as time-barred.
In his application for a certificate of appealability, Appellant argues the district
court should have found his motion timely under § 2255(f)(3) and/or § 2255(f)(4), since
the right he is raising was not recognized until the Supreme Court issued its decision in
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Alleyne. However, the district court’s holding that Appellant’s motion was untimely
“could not be questioned by any reasonable jurist.” United States v. Hoon, 762 F.3d
1172, 1173 (10th Cir. 2014). The Alleyne decision has not been made retroactively
applicable, and it does not constitute a newly discovered fact under § 2255(f)(4).
Appellant also argues the district court erred in dismissing his petition without
providing him a chance to argue he was entitled to equitable tolling. Appellant asserts
that, had the district court provided him with an opportunity to raise equitable tolling
arguments, he would have argued he was entitled to equitable tolling because (1) after
sentencing, he was under the impression that trial counsel was in the process of filing a
direct appeal on his behalf, and he only discovered she had not done so after the time for
filing a notice of appeal had expired; and (2) due to counsel’s advice, he believed he
could not file a direct appeal under the terms of his plea agreement. Both of these
contradictory arguments are themselves contradicted by Appellant’s § 2255 motion, in
which he asserted that he did not file an appeal because his “[a]ttorney advised [him] that
there were no obvious claims that justified filing an appeal on [his] behalf.” (R. at 35.)
Moreover, even if we were to credit either of Appellant’s equitable tolling arguments,
they do nothing to establish that he pursued his claims with due diligence during the
almost three years that passed between his sentencing and his filing of the habeas motion
in 2013.
After thoroughly reviewing Appellant’s brief and the record on appeal, we
conclude that reasonable jurists would not debate the district court’s denial of the habeas
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motion as time-barred. We accordingly DENY Appellant’s request for a certificate of
appealability and DISMISS the appeal. Appellant’s motion to proceed in forma pauperis
on appeal is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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