(D.C.
No. 2:17-CV-01176-MV-CG) (D. N.M.)
Before
HARTZ, McHUGH, and CARSON, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
HARRIS
L HARTZ CIRCUIT JUDGE
Eric
Paul Kenneth, acting pro se, seeks a certificate of
appealability (COA) to appeal from the denial by the United
States District Court for the District of New Mexico of his
application for relief under 28 U.S.C. § 2254.
See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to
appeal denial of § 2254 application). He claims that he
received ineffective assistance of counsel in his state
criminal trial and on appeal, that his prosecution on the
charges against him violated the Double Jeopardy Clause of
the Constitution, and that the trial judge failed to ensure a
fair trial. We need not address the merits of these
arguments. Because the district court correctly dismissed Mr.
Kenneth's application as untimely under 28 U.S.C. §
2244(d)(1), we deny a COA and dismiss the appeal.
In
2013, Mr. Kenneth was convicted in New Mexico state court of
kidnapping, aggravated battery, criminal sexual contact with
a deadly weapon, and impersonating a peace officer. His
convictions were affirmed by the New Mexico Court of Appeals
on November 12, 2015, and the New Mexico Supreme Court denied
his petition for a writ of certiorari on January 5, 2016. He
did not file a petition for certiorari with the United States
Supreme Court. On June 7, 2016, he filed a motion for
modification of sentence in state court; the court denied the
motion on June 29, 2016. On July 24, 2017, he filed a
petition for writ of habeas corpus in state court. The trial
court denied the petition, and the New Mexico Supreme Court
denied certiorari on August 21, 2017. He filed his §
2254 application in federal court on November 29, 2017. The
magistrate judge issued an order to show cause why the
application should not be dismissed as untimely, and after
Mr. Kenneth responded, the district court dismissed the
application as barred by the one-year limitations period in
§ 2244(d)(1).
"When
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, 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). And "[w]here a
plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner
should be allowed to proceed further." Id.
The
district court correctly invoked the procedural bar imposed
by § 2244(d)(1) to dispose of this case. Under that
provision a prisoner's § 2254 application must
ordinarily be filed within one year of "the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review." § 2244(d)(1)(A). Mr. Kenneth's
conviction became final upon expiration of the time to seek
direct review through a petition for certiorari to the United
States Supreme Court, which was April 4, 2016-90 days after
the New Mexico Supreme Court denied his petition for
certiorari. See Harris v. Dinwiddie, 642 F.3d 902,
906 n.6 (10th Cir. 2011). He filed his § 2254
application more than 18 months after that date.
None of
the other provisions of § 2244 afford Mr. Kenneth an
extension of the limitations period that would render his
application timely. Under § 2244(d)(2), "[t]he time
during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection." But even if we assume that his state motion
for modification of sentence qualifies as an application for
collateral review, it would toll the limitations period for
only 52 days-the 22 days from June 7 to June 29, 2016, plus
30 days to seek appeal, see NMRA Rule
12-201(A)(1)(b). And he is not entitled to any additional
extension based on the filing of his state petition for
postconviction relief in July 2017, because it was filed
after expiration of the one-year limitations period (even
with a 52-day extension). See Clark v. Oklahoma, 468
F.3d 711, 714 (10th Cir. 2006) ("Only state petitions
for post-conviction relief filed within the one year allowed
by AEDPA will toll the statute of limitations.").
On
appeal Mr. Kenneth argues that he lacked access to the
factual record necessary to assert certain claims, and thus
that the limitations period should be measured from
"'the date on which the factual predicate of [the]
claim or claims presented could have been discovered through
the exercise of due diligence.'" Aplt. Br. at 5-6
(quoting § 2244(d)(1)(D)). But this argument was not
presented to the district court, so we will not consider it.
See United States v. Viera, 674 F.3d 1214, 1220
(10th Cir. 2012) ("[A]s to issues that were not
presented to the district court, we adhere to our general
rule against considering issues for the first time on
appeal.").
Nor is
Mr. Kenneth entitled to equitable tolling of the limitations
period. A habeas applicant is "entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing." Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). The district court
held that Mr. Kenneth had not demonstrated extraordinary
circumstances warranting equitable tolling, and we will not
disturb that ruling absent a showing of an abuse of
discretion. See Garrett v. Fleming, 362 F.3d 692,
695 (10th Cir. 2004). Mr. Kenneth has not made such a
showing. Although he argues that equitable tolling may be
justified by an attorney's egregious misconduct that
prevents an application from being timely filed, see
Holland, 560 U.S. at 652-53, as when counsel abandoned
the prisoner during a critical proceeding, see Maples v.
Thomas, 565 U.S. 266, 282-83 (2012), he does not allege
any such misconduct. The extent of his claim is that his
former trial attorney declined to provide him with court
documents at the attorney's own expense for use in
postconviction proceedings. That is not misconduct warranting
extraordinary equitable relief, particularly when he failed
to explain to the district court why he needed the documents
to pursue postconviction relief.
He also
asserts that he had difficulty obtaining a recording of trial
proceedings, which was necessary to prove ineffective
assistance of counsel. But he does not identify any reason
that the recording was necessary to pursue that claim; he
simply points to relatively minor discrepancies between the
recording and the printed transcript. In any event, this
court has repeatedly rejected the argument that difficulty in
obtaining trial records constitutes "extraordinary
circumstances" justifying equitable tolling. See,
e.g., Levering v. Dowling, 721 Fed.Appx. 783,
788 (10th Cir. 2018) ("[N]either the difficulty in
obtaining trial court transcripts nor [applicant's]
limited time in the law library are 'extraordinary
circumstances' that would justify the use of equitable
tolling."); Porter v. Albaugh, 672 Fed.Appx.
851, 857 (10th Cir. 2016) ("[E]ven if we gave
[applicant] the benefit of the equitable-tolling arguments
that he advanced before the district court-viz.,
general difficulties in obtaining trial transcripts
and in accessing the prison law library- we would conclude
that reasonable jurists would not find debatable the district
court's determination that [applicant's] general
grievances fail to constitute extraordinary
circumstances."). Thus, jurists of reason could not
debate that the district court did not abuse its discretion
in declining to grant equitable tolling on that basis.
Finally,
Mr. Kenneth asserts that he is actually innocent of the
offenses of which he was convicted, and thus we should
consider his untimely application to avoid a miscarriage of
justice. See McQuiggin v. Perkins, 569 U.S. 383,
397-98 (2013). But he did not present that argument to the
district court. Even for actual-innocence claims, "we
adhere to our general rule against considering issues for the
first time on appeal." Viera, 674 F.3d at 1220;
see, e.g., United States v. Moncada, 714
Fed.Appx. 912, 913 (10th Cir. 2018) ("It does not appear
that [the applicant] argued actual innocence below, and
therefore he has waived the issue on appeal." (citation
omitted)); Heath v. Soares, 49 Fed.Appx. 818, 821
(10th Cir. 2002) ("[The applicant] did not assert actual
innocence at critical stages in the proceedings, and as a
general rule we will not consider a claim that was waived or
abandoned in the district court.").
We
DENY the application for a COA and
DISMISS the appeal. We
GRANT Mr. Kenneth's ...