Bruce v. Lampert

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 12, 2020
• Docket: 20-8012
• Status: Unpublished

Opinion

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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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)

2 (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