Crowder v. Martin

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS December 10, 2020

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ______________________________________________

SHARAY TYREE CROWDER,

Petitioner - Appellant, No. 20-6053 v. (D.C. No. 5:19-CV-00747-HE) (W.D. Okla.) JIMMY MARTIN, Warden,

Respondent - Appellee. ______________________________________________

ORDER ______________________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. ______________________________________________

This appeal grew out of state court convictions for possessing child

pornography and sexually abusing children. The petitioner (Mr. Sharay

Crowder) sought habeas relief, and the district court dismissed the petition

based on timeliness. See 28 U.S.C. § 2244(d). Mr. Crowder wants to appeal

and seeks leave to proceed in forma pauperis.

Mr. Crowder can appeal only if he obtains a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate is available only

upon a showing that the district court’s ruling on timeliness was at least

reasonably debatable. Laurson v. Leyba, 507 F.3d 1230, 1231–32 (10th Cir.

2007). In seeking a certificate of appealability, Mr. Crowder contends that

the availability of equitable tolling is reasonably debatable. Equitable

tolling is warranted only if (1) a petitioner has diligently pursued his rights

and (2) extraordinary circumstances prevented timely filing. Yang v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). If we were to grant a

certificate, we would review the district court’s ruling only for an abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).

Mr. Crowder makes three arguments for equitable tolling:

1. He couldn’t seek post-conviction relief in state court without a trial transcript.

2. He couldn’t obtain access to a trial transcript because he couldn’t afford the court reporter’s fee.

3. The state court misled him with respect to the need for a trial transcript.

For these arguments, Mr. Crowder points to

 a state-court opinion requiring applications for post-conviction relief to contain specific factual allegations and

 the instructions on the state court’s form for post-conviction relief to “[a]ttach supporting documentation.”

Appellant’s Opening Br. at 15. We reject Mr. Crowder’s arguments for

equitable tolling.

Mr. Crowder could have sought federal habeas relief without a trial

transcript. He contends that he needed a transcript to seek post-conviction

2 relief in state court, but he could have sought federal habeas relief without

applying in state court for post-conviction relief.

Even if we credit his desire to pursue post-conviction relief in state

court, he was still dilatory. He didn’t request a trial transcript until

roughly seven months after his conviction had become final. When the

request was denied, Mr. Crowder sought mandamus relief in state court.

When mandamus was denied, Mr. Crowder waited another year before

filing a federal habeas petition.

Even if he were entitled to equitable tolling, he’d still waited roughly

seven months without taking any action to obtain a transcript. So even with

equitable tolling, the federal habeas petition would have been out-of-time

by roughly seven months. We thus decline to issue a certificate of

appealability. Given the absence of a certificate, we dismiss this matter.

Though we dismiss the matter, Mr. Crowder cannot afford to prepay

the filing fee. So we grant his motion for leave to proceed in forma

pauperis.

Entered for the Court

Robert E. Bacharach Circuit Judge