FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 19, 2015
Elisabeth A. Shumaker
Clerk of Court
JEROME LYNN HOLLY,
Petitioner - Appellant,
v. No. 14-2184
(D.C. No. 1:12-CV-00952-MCA-WPL)
ERASMO BRAVO, (D. N.M.)
Respondent - Appellee.
ORDER AND JUDGMENT*
Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.
Jerome Lynn Holly was convicted of first-degree murder and attempted
first-degree murder following a jury trial in New Mexico. On January 29, 2009, the
New Mexico Supreme Court affirmed his convictions, and he did not seek further
direct review. He then waited nearly two years to file two successive state habeas
petitions challenging his convictions. After these state petitions were denied, he
eventually filed the federal habeas petition underlying this appeal. The magistrate
*
After examining the briefing and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
judge noted the facial untimeliness of the petition, but granted Mr. Holly a hearing
on equitable tolling and appointed the federal public defender to proceed on his
behalf.1 The district court ultimately adopted the magistrate judge’s recommendation
to deny equitable tolling and dismiss the petition as barred by the one-year deadline
in 28 U.S.C. § 2244(d). Seeking to appeal that determination, Mr. Holly’s counsel
has submitted a brief including a request for a certificate of appealability (COA)
pursuant to 28 U.S.C. § 2253(c). We grant a COA and, upon full consideration of the
arguments in Mr. Holly’s appeal brief, affirm the order of the district court.
Because the district court’s ruling rested on procedural grounds, Mr. Holly
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). In applying this standard, we are mindful that
“a COA does not require a showing that the appeal will succeed.” Miller-El v.
Cockrell, 537 U.S. 322, 337 (2003). While the matter is close, we conclude that the
issue of equitable tolling here is “‘adequate to deserve encouragement to proceed
1
The magistrate judge calculated that the one-year limitations period for
commencing federal habeas proceedings expired on May 14, 2010. Mr. Holly does
not dispute that determination. Because this deadline passed some nineteen months
before he first filed for state habeas relief, the provision in § 2244(d)(2) tolling the
limitations period during the pendency of an application for state post-conviction or
other collateral review never came into play. See Clark v. Oklahoma, 468 F.3d 711,
714 (10th Cir. 2006). Thus, Mr. Holly must rely on equitable tolling principles to
save his belatedly filed habeas petition.
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further’” under the Slack standard. Id. at 336 (quoting Slack, 529 U.S. at 484). We
therefore grant a COA and proceed to the merits of the appeal in light of Mr. Holly’s
appellate brief.2
“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstances
stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). Thus, “equitable tolling is appropriate
only in rare and exceptional circumstances.” Sigala v. Bravo, 656 F.3d 1125, 1128
(10th Cir. 2011) (internal quotation marks omitted). The magistrate judge discussed
at length the circumstances surrounding Mr. Holly’s delay and his unpersuasive
attempt to excuse that delay by attributing it all to the inaction of one of his attorneys
rather than his own failure to pursue his rights diligently. Without repeating that
entire discussion, we set out those salient facts that convince us of the correctness of
the district court’s decision.
Mr. Holly hired attorney Gary Hill to represent him through trial, appeal, and
any subsequent proceedings. Mr. Hill contracted with another attorney to handle the
trial, did not appear for sentencing, and allowed a public defender to handle the
appeal. In his federal habeas petition, Mr. Holly gave a very specific excuse for his
years of delay in challenging his conviction following his appeal: Mr. Hill told him
2
Because we conclude that the arguments advanced by Mr. Holly ultimately do
not warrant appellate relief, we have not ordered the respondent to file an answer
brief.
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he had filed a motion for rehearing, after which Mr. Hill failed to answer or return his
calls. Mr. Holly’s testimony at the evidentiary hearing was different and much more
vague. He stated that as a general matter Mr. Hill never explained what he was going
to do and that he (Mr. Holly) never asked for such explanations. Mr. Hill just gave
broad assurances that he would get Mr. Holly released, possibly by hiring yet another
attorney to work on his case. As for the rehearing motion in particular, Mr. Holly
testified that his public defender had mentioned possibly considering such a motion
and that Mr. Hill had led him to believe that Mr. Hill was going to call the public
defender to discuss that. The public defender, who testified at the evidentiary
hearing, denied making any comments about a possible rehearing motion—a point
supported by contemporaneous notes the public defender kept. In any event, after the
time for rehearing passed and the appellate mandate issued, the public defender sent a
letter to Mr. Holly informing him that with the issuance of the mandate the appeal
was officially over and that state and federal habeas proceedings were his remaining
means of challenging his conviction.
The public defender also explained to Mr. Holly the time limits on seeking
federal habeas relief. Yet, as far as Mr. Holly’s testimony indicates, Mr. Holly never
discussed these time limits with Mr. Hill, never directed Mr. Hill to file a state or
federal habeas petition, was never told that Mr. Hill had filed a petition, and indeed
never even asked whether Mr. Hill had filed or would file a petition. Nor did
Mr. Holly contact the courts to make any inquiries in this regard or otherwise take
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steps to ensure specifically that Mr. Hill was acting to preserve his right to file for
habeas relief. He simply relied on vague assurances that Mr. Hill was in some
unspecified fashion working on his case. Over time Mr. Hill became more and more
reclusive. Eventually, some two and a half years after his conviction had been
affirmed on appeal, Mr. Holly began pursuing state habeas relief himself. Following
the failure of his second state petition, he belatedly commenced the instant federal
habeas proceeding.
Mr. Holly contends that these circumstances warrant equitable tolling of the
habeas limitations period, citing a number of cases in which equitable tolling was
deemed warranted, or at least arguably warranted, based on counsel’s failure to
timely pursue postconviction remedies. But the circumstances noted above sharply
distinguish Mr. Holly’s situation from those in the cited cases, where counsel failed
to pursue particular remedies to preserve habeas rights as specifically promised to
petitioners who made affirmative efforts to see that those specific promises were kept.
Cf. Holland, 560 U.S. at 636-43; Fleming, 481 F.3d at 1255-57; Doe v. Busby,
661 F.3d 1001, 1009-10, 1012-13 (9th Cir. 2011); United States v. Martin, 408 F.3d
1089, 1090-91 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003);
United States v. Wynn, 292 F.3d 226, 228-29 (5th Cir. 2002). Mr. Holly emphasizes
that he remained in general contact with Mr. Hill, in part through two mutual friends,
but the vagary of his communication with Mr. Hill—whom he (and the friends)
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deliberately avoided asking specific questions—undercuts its import for purposes of
demonstrating diligence and reasonable reliance.
Mr. Holly characterizes Mr. Hill as a friend and contends that this justified his
inattentive reliance on Mr. Hill. He cites no authority holding that misplaced or
undue professional reliance may be excused for such personal reasons. In any event,
he did not make this argument in his objections to the magistrate judge’s
recommendation and we deem the point forfeited under our firm waiver rule. See
Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir. 2009). See also United States v.
Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (adhering to general waiver rules in
deciding request for COA). Mr. Holly also contends that counsel’s failure to provide
his case file when he decided to pursue state habeas relief is a separate act of
unprofessionalism lending additional support to his argument for equitable tolling.
This point was likewise omitted from his objections to the magistrate judge’s
recommendation. We further note that, given the expiration of the federal habeas
limitations period well before Mr. Holly began work on his state habeas petition,
counsel’s failure to turn over the file did not adversely affect, much less prevent, his
ability to timely file the habeas petition, as required by Holland, 560 U.S. at 649.
The request for COA is granted and the order of the district court is affirmed.
Entered for the Court
John C. Porfilio
Circuit Judge
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