FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3224
(D.C. Nos. 6:19-CV-01211-EFM &
TERENCE L. THOMAS, 6:16-CR-10034-EFM-1)
(D. Kan.)
Defendant - Appellant.
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ORDER
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Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges.
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Mr. Terence L. Thomas was convicted in federal court on charges of
robbing a bank and brandishing a firearm during and in relation to a Hobbs
Act robbery. 18 U.S.C. §§ 2113(a), 924(c)(1). Though Mr. Thomas did not
appeal, he moved to vacate his sentence under 28 U.S.C. § 2255. The
district court denied relief, and he wants to appeal. To do so, however, he
needs a certificate of appealability. United States v. Gonzalez, 596 F.3d
1228, 1241 (10th Cir. 2010). We decline to issue a certificate.
This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order may be cited for its persuasive value if otherwise appropriate. See
Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
To obtain a certificate, Mr. Thomas must show that reasonable jurists
would find the district court’s resolution debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). But Mr. Thomas has not made this
showing.
He asserted six claims in district court:
1. The district court had improperly departed upward from the
guideline range on his robbery sentence.
2. He should have been allowed to withdraw his guilty plea based
on ineffective assistance of counsel and prosecutorial
misconduct.
3. His sentence had been improperly calculated based on Johnson
v. United States, 576 U.S. 591 (2015), and United States v.
Davis, 139 S. Ct. 2319 (2019).
4. He had been improperly forced to obtain legal representation.
5. When pleading guilty, he had not known that his victims did
not want him imprisoned.
6. His counsel had refused to file a notice of appeal despite
instructions to appeal.
The district court concluded that five of the claims were time-barred.
The sole exception was Mr. Thomas’s claim that the district court had
improperly calculated the sentence under United States v. Davis, 139 S. Ct.
2319 (2019). The court concluded that this claim was invalid on the merits.
In seeking a certificate of appealability, Mr. Thomas does not
question the district court’s reasoning. The shortcoming in his argument is
understandable, for Mr. Thomas is acting pro se. Because he is acting pro
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se, we liberally construe his request for a certificate of appealability. See
Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002) (stating that we
liberally construe a pro se petitioner’s request for a certificate of
appealability). But we cannot construct arguments for Mr. Thomas. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also In re
Antrobus, 563 F.3d 1092, 1099 (10th Cir. 2009) (“Under our rules we are
not permitted to invent arguments even for pro se litigants . . . .”).
In claiming that his attorney refused to file a notice of appeal, Mr.
Thomas states that his attorney had lied for 20 months. If the attorney had
lied, Mr. Thomas might be entitled to equitable tolling. See Fleming v.
Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (“[S]ufficiently egregious
misconduct on the part of a habeas petitioner’s counsel may justify
equitable tolling of the [28 U.S.C. § 2244(d)] limitations period.”). For
equitable tolling, Mr. Thomas bears the burden. Sigala v. Bravo, 656 F.3d
1125, 1128 (10th Cir. 2011). But Mr. Thomas doesn’t say when he learned
that his attorney had failed to file the notice of appeal. He has thus failed
to develop a meaningful argument for tolling based on his attorney’s
alleged lies.
He not only failed to develop this argument on appeal but also
forfeited it by failing to develop it in district court. In district court, Mr.
Thomas said in his motion that he had “been in transit for the last 20
months,” had tried to contact the attorney and “repeatedly asked” about
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motions, but had “recently found out that [no appeal] was made on [his]
behalf.” Motion Under 28 U.S.C. § 2255 at 12, United States v. Thomas,
6:16-cr-10034-EFM-1, ECF. No. 38. But he did not say when he had
learned of his attorney’s failure to file the notice of appeal. So Mr. Thomas
not only failed to develop the issue on appeal but also forfeited this issue
in district court. See Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir.
2013).
Mr. Thomas also argues that
he sent other filings and a letter, which the court clerk
erroneously deemed illegible; and
his mental health problems prevented further diligence.
But Mr. Thomas forfeited these arguments by failing to make them in
district court. See id.
Mr. Thomas makes no other arguments that could conceivably cast
doubt on the district court’s reasoning. We thus deny his request for a
certificate of appealability. In the absence of a certificate, we dismiss this
matter.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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United States v. Thomas
Combined Opinion