FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 10, 2021 _________________________________ Christopher M. Wolpert Clerk of Court AZLEN ADIEU FARQUOIT MARCHET,
Petitioner - Appellant,
v. No. 20-4113 (D.C. No. 2:18-CV-00577-TS) ROBERT POWELL, Utah State Prison (D. Utah) Warden,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges. _________________________________
Azlen Marchet, a Utah state prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254
application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A). He also seeks
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Mr. Marchet is pro se, we construe his filings liberally, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we deny both requests and dismiss this matter.
I. BACKGROUND
On November 5, 2010, a Utah district court sentenced Mr. Marchet to fifteen years
to life in prison on each of two aggravated sexual assault convictions. {ROA, Vol. II at
187.} On September 27, 2012, the Utah Court of Appeals upheld his convictions on
direct appeal. State v. Marchet, 287 P.3d 490 (Utah Ct. App. 2012). On December 13,
2012, the Utah Supreme Court denied certiorari. State v. Marchet, 293 P.3d 376 (Utah
2012). Mr. Marchet did not seek certiorari from the United States Supreme Court.
On December 9, 2013, Mr. Marchet filed a petition for post-conviction relief.
{ROA, Vol. III at 5.} On March 21, 2017, the state district court dismissed that petition.
The Utah Court of Appeals affirmed. {Id. at 210, 254.} On January 31, 2018, the
dismissal became final when the Utah Supreme Court denied Mr. Marchet’s petition for a
writ of certiorari. {Id. at 15.}
On July 19, 2018, Mr. Marchet filed a habeas petition in the federal district court
under 28 U.S.C. § 2254. {ROA, Vol. I at 6.} On May 9, 2019, he filed an amended
petition. {Id. at 185.} On the state’s motion, the district court dismissed Mr. Marchet’s
petition because he filed it outside of the one-year limitations period. {ROA, Vol. III at
284.}
2 II. DISCUSSION
A. Legal Background
Before we may exercise jurisdiction over Mr. Marchet’s appeal, he must obtain
COAs for the issues he wishes to raise. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). Where, as
here, the district court dismissed the § 2254 application on procedural grounds, we will
grant a COA only if the applicant can demonstrate both “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).
State prisoners must file their § 2254 applications within one year of the day “the
judgment [of the state court] became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This period
is tolled while a state post-conviction petition is pending. Id. § 2244(d)(2).
B. Analysis
Statute of Limitations
The Utah Supreme Court denied certiorari on Mr. Marchet’s direct appeal on
December 13, 2012. Mr. Marchet did not seek certiorari from the United States Supreme
Court. The time for seeking such review expired after ninety days, on March 13, 2013.
Sup. Ct. R. 13.1. Mr. Marchet’s conviction therefore became “final” for purposes of
§ 2244(d)(1) on March 13, 2013, and the limitations period for federal habeas relief
began to run on that date. See Locke v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001).
But on December 9, 2013, Mr. Marchet filed a state petition for post-conviction
3 relief. This tolled the limitation period under § 2244(d)(2), with 271 days having elapsed
and 94 days remaining. The period began to run again when the Utah Supreme Court
denied certiorari on Mr. Marchet’s state post-conviction petition on January 31, 2018.2
The remaining 94 days expired on May 7, 2018.3 When Mr. Marchet filed his § 2254
petition on July 19, 2018, it was therefore untimely.
Equitable Tolling
Mr. Marchet argues the one-year period of limitations should be equitably tolled,
claiming the district court “lost” an earlier § 2254 petition that he attempted to file in
March 2017, well before the May 7, 2018 deadline.4 Aplt. Br. at 1. A § 2254 petitioner
is “entitled to equitable tolling only if he shows that (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) (quotations
omitted). “Equitable tolling is a rare remedy to be applied in unusual circumstances. An
2 Section 2242(d)(2) does not toll § 2241(d)(1)’s limitation period during the pendency of a petition for certiorari to the United States Supreme Court, or during the period of time in which a petitioner can file a petition for a writ of certiorari. See Lawrence v. Florida, 549 U.S. 327, 337 (2007). Mr. Marchet did not seek certiorari from the United States Supreme Court. 3 Ninety-four days after January 31, 2018 was Saturday, May 5. The limitations period therefore continued to run until the end of the day on Monday, May 7. Fed. R. Civ. P. 6(a)(1)(C). 4 The district court characterized this as an argument that Mr. Marchet’s petition was in fact filed within the applicable statute of limitations, not as an argument for equitable tolling. {ROA, Vol. III at 286.} Regardless of how the argument is construed, the result is the same.
4 inmate bears a strong burden to show specific facts to support his claim of extraordinary
circumstances and due diligence.” Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir.
2015) (citation, quotations, and alteration omitted).
Mr. Marchet has failed to meet that burden. He relies solely on two pages of
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 10, 2021 _________________________________ Christopher M. Wolpert Clerk of Court AZLEN ADIEU FARQUOIT MARCHET,
Petitioner - Appellant,
v. No. 20-4113 (D.C. No. 2:18-CV-00577-TS) ROBERT POWELL, Utah State Prison (D. Utah) Warden,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges. _________________________________
Azlen Marchet, a Utah state prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254
application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A). He also seeks
* 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. 1 Because Mr. Marchet is pro se, we construe his filings liberally, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we deny both requests and dismiss this matter.
I. BACKGROUND
On November 5, 2010, a Utah district court sentenced Mr. Marchet to fifteen years
to life in prison on each of two aggravated sexual assault convictions. {ROA, Vol. II at
187.} On September 27, 2012, the Utah Court of Appeals upheld his convictions on
direct appeal. State v. Marchet, 287 P.3d 490 (Utah Ct. App. 2012). On December 13,
2012, the Utah Supreme Court denied certiorari. State v. Marchet, 293 P.3d 376 (Utah
2012). Mr. Marchet did not seek certiorari from the United States Supreme Court.
On December 9, 2013, Mr. Marchet filed a petition for post-conviction relief.
{ROA, Vol. III at 5.} On March 21, 2017, the state district court dismissed that petition.
The Utah Court of Appeals affirmed. {Id. at 210, 254.} On January 31, 2018, the
dismissal became final when the Utah Supreme Court denied Mr. Marchet’s petition for a
writ of certiorari. {Id. at 15.}
On July 19, 2018, Mr. Marchet filed a habeas petition in the federal district court
under 28 U.S.C. § 2254. {ROA, Vol. I at 6.} On May 9, 2019, he filed an amended
petition. {Id. at 185.} On the state’s motion, the district court dismissed Mr. Marchet’s
petition because he filed it outside of the one-year limitations period. {ROA, Vol. III at
284.}
2 II. DISCUSSION
A. Legal Background
Before we may exercise jurisdiction over Mr. Marchet’s appeal, he must obtain
COAs for the issues he wishes to raise. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). Where, as
here, the district court dismissed the § 2254 application on procedural grounds, we will
grant a COA only if the applicant can demonstrate both “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).
State prisoners must file their § 2254 applications within one year of the day “the
judgment [of the state court] became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This period
is tolled while a state post-conviction petition is pending. Id. § 2244(d)(2).
B. Analysis
Statute of Limitations
The Utah Supreme Court denied certiorari on Mr. Marchet’s direct appeal on
December 13, 2012. Mr. Marchet did not seek certiorari from the United States Supreme
Court. The time for seeking such review expired after ninety days, on March 13, 2013.
Sup. Ct. R. 13.1. Mr. Marchet’s conviction therefore became “final” for purposes of
§ 2244(d)(1) on March 13, 2013, and the limitations period for federal habeas relief
began to run on that date. See Locke v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001).
But on December 9, 2013, Mr. Marchet filed a state petition for post-conviction
3 relief. This tolled the limitation period under § 2244(d)(2), with 271 days having elapsed
and 94 days remaining. The period began to run again when the Utah Supreme Court
denied certiorari on Mr. Marchet’s state post-conviction petition on January 31, 2018.2
The remaining 94 days expired on May 7, 2018.3 When Mr. Marchet filed his § 2254
petition on July 19, 2018, it was therefore untimely.
Equitable Tolling
Mr. Marchet argues the one-year period of limitations should be equitably tolled,
claiming the district court “lost” an earlier § 2254 petition that he attempted to file in
March 2017, well before the May 7, 2018 deadline.4 Aplt. Br. at 1. A § 2254 petitioner
is “entitled to equitable tolling only if he shows that (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) (quotations
omitted). “Equitable tolling is a rare remedy to be applied in unusual circumstances. An
2 Section 2242(d)(2) does not toll § 2241(d)(1)’s limitation period during the pendency of a petition for certiorari to the United States Supreme Court, or during the period of time in which a petitioner can file a petition for a writ of certiorari. See Lawrence v. Florida, 549 U.S. 327, 337 (2007). Mr. Marchet did not seek certiorari from the United States Supreme Court. 3 Ninety-four days after January 31, 2018 was Saturday, May 5. The limitations period therefore continued to run until the end of the day on Monday, May 7. Fed. R. Civ. P. 6(a)(1)(C). 4 The district court characterized this as an argument that Mr. Marchet’s petition was in fact filed within the applicable statute of limitations, not as an argument for equitable tolling. {ROA, Vol. III at 286.} Regardless of how the argument is construed, the result is the same.
4 inmate bears a strong burden to show specific facts to support his claim of extraordinary
circumstances and due diligence.” Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir.
2015) (citation, quotations, and alteration omitted).
Mr. Marchet has failed to meet that burden. He relies solely on two pages of
United States Post Office “Tracking Results” to support his contention that his § 2254
petition was delivered to the district court in March 2017. {ROA, Vol. III at 279-83.}
But as the district court noted, the tracking information provided by Mr. Marchet
specifies only that an item was delivered to “front desk/reception” in Salt Lake City,
Utah, 84104, on March 28, 2017, and that another item was delivered to “front
desk/reception” in Salt Lake City, Utah, 84101, on March 29, 2017.5 The tracking
information does not disclose what the item was, or the precise address to which it was
delivered. Nor does it identify the sender or the sender’s address. Mr. Marchet has
therefore failed to show that extraordinary circumstances prevented him from filing his
petition.6
Actual Innocence
A § 2254 petitioner may also overcome the one-year limitations period by making
5 The district court’s zip code is 84101. {ROA, Vol. III at 286, n.2.} 6 In the district court, Mr. Marchet also argued that equitable tolling is appropriate because he was in solitary confinement without access to legal materials from April 20, 2018, to June 1, 2018. But he does not make that argument in his briefing before us, and it is therefore waived. See Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (The rule that “[a]rguments not clearly made in a party’s opening brief are deemed waived” applies “even to prisoners who proceed pro se and therefore are entitled to liberal construction of their filings.”).
5 a credible showing of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 393
(2013). To invoke this exception, “a petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in light of . . . new evidence.” Id. at
399 (quotations omitted). A claim of actual innocence must be based on new evidence
suggesting “factual innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 623 (1998).
Mr. Marchet has not identified any new evidence. Instead, he argues that, because
of an intervening change in Utah law, certain witnesses who testified at his trial would
not be allowed to testify if his trial was held today. But, as the district court correctly
concluded, a change in law is not new evidence. Because Mr. Marchet has failed to
identify any new evidence that was not presented to the jury at trial, he has failed to make
a credible showing of actual innocence.
III. CONCLUSION
Mr. Marchet has not made the showing required for a COA. We therefore dismiss
this matter. We also deny his request to proceed ifp.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge