FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 12, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
PERRY BRUCE, SR.,
Petitioner-Appellant,
v. No. 20-8012
(D.C. No. 19-CV-00269-ABJ)
ROBERT LAMPERT; WYOMING (D. Wyo.)
ATTORNEY GENERAL,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, BALDOCK, and CARSON, Circuit Judges. **
Before this Court is Petitioner Perry Bruce’s motion for a certificate of
appealability (COA). 28 U.S.C. § 2253(c). Petitioner needs a COA before he can
appeal the district court’s denial of his § 2254 petition for a writ of habeas corpus
as outside the one-year statute of limitations. Id. § 2244(d)(1)(A). When a district
*
This order is not binding precedent except under the doctrines of law of the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 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 on the briefs.
court denies a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue only when the prisoner shows
that jurists of reason would find it debatable whether the petition states a valid
claims 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 July 2012, Petitioner pled guilty in Wyoming State Court to one count of
first degree sexual abuse of a minor. In August 2012, the state court sentenced him
to forty to fifty years in prison. Petitioner did not file his § 2254 petition until
December 31, 2019. In a thorough written order, the district court ably explained
why the petition fell well outside AEDPA’s one year statute of limitation and was
not subject to equitable tolling sufficient to extend the deadline. 28 U.S.C.
§ 2244(d)(1)(A). In his motion, Petitioner claims he is entitled to equitable tolling
of his § 2254 claims because he is not legally trained and his appointed trial counsel
was ineffective. To be entitled to equitable tolling, Petitioner must show (1) he has
been pursuing his rights diligently and (2) some extraordinary circumstance stood in
his way and prevented timely filing. Lawrence v. Florida, 549 U.S. 327, 336 (2007).
Unfortunately, neither unfamiliarity with the legal process nor attorney error itself
is a basis for equitable tolling. Murrell v. Crow, 793 F. App’x 675, 679 (10th Cir.
2019) (unpublished); Pink v. McKune, 146 F. App’x 264, 267 (10th Cir. 2005)
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(unpublished). While some ineffective assistance of counsel claims that are
corroborated by evidence apart from a petitioner’s say so may set out extraordinary
circumstances that warrant tolling, this is not such a case. As the district court
commented after reviewing Petitioner’s allegations and the record before it:
“Bruce’s complaints about his [trial] counsel’s performance are just that:
complaints.” Moreover, Petitioner does not appear to have pursued his rights
diligently over the past seven or so years. Petitioner’s deadline for meeting
AEDPA’s statute of limitations was March 8, 2014. Yet Petitioner waited over five
years after his deadline to tell the federal court the same thing he had been telling the
state court in numerous motions for post-conviction relief since his first motion to
withdraw his guilty plea in late July 2013.
Substantially for the reasons set forth in the district court’s order dismissing
Petitioner’s § 2254 petition, his motion for a COA is DENIED and this matter is
DISMISSED. Petitioner’s motion to proceed on appeal in forma pauperis is
DENIED as moot.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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