FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MARTY W. RHODES,
Petitioner - Appellant,
v. No. 17-8080 (D.C. No. 2:17-CV-00092-SWS) WYOMING DEPARTMENT OF (D. Wyoming) CORRECTIONS; MICHAEL PACHECO, Warden, Wyoming State Penitentiary; WYOMING ATTORNEY GENERAL,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
Wyoming state prisoner Marty W. Rhodes, appearing pro se,1 seeks a
certificate of appealability (“COA”) to challenge the dismissal of his petition for writ
of habeas corpus. We deny a COA and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 Because Mr. Walker is pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND
Mr. Rhodes is serving consecutive sentences for child abuse and third-degree
sexual abuse of a minor—up to twenty years, in total. See Rhodes v. State, 348 P.3d
404, 407 (Wyo. 2015). His convictions and sentences were affirmed by the Wyoming
Supreme Court on April 27, 2015. Id. at 415. On July 8, 2015, Mr. Rhodes filed a
Petition for Writ of Error Coram Nobis with the Wyoming Supreme Court, which
was denied on August 4, 2015. Nearly a year passed. On July 21, 2016, Mr. Rhodes
filed a document entitled “Petition for Post Conviction Relief with Request for
Evidentiary Hearing” in a Wyoming trial court. That court dismissed the petition in
January 2017. On February 9, 2017, Mr. Rhodes petitioned the Wyoming Supreme
Court a second time, this time by a Petition for Writ of Certiorari. Again, the
Wyoming Supreme Court denied relief. Its second and final order in Mr. Rhodes’s
case was entered on February 28, 2017.
Finding no help in Wyoming’s courts, Mr. Rhodes turned to the federal
system. On May 31, 2017, he filed a petition under 28 U.S.C. § 2254 for a writ of
habeas corpus by a person in state custody. Mr. Rhodes was again unsuccessful. The
federal district court dismissed his petition, finding it time-barred under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
2 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). However, “[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.” Id. § 2244(d)(2).
Applying § 2244(d), the district court concluded that Mr. Rhodes’s one-year
window to seek federal habeas relief commenced on August 4, 2015, when the
Wyoming Supreme Court denied his Petition for Writ of Error Coram Nobis. Three-
hundred and fifty-two days later, on July 21, 2016, Mr. Rhodes filed his request for
post-conviction relief with the state trial court. That filing, the federal district court
reasoned, tolled Mr. Rhodes’s limitations period with thirteen days to go. See
§ 2244(d)(2). The suspension of AEDPA’s limitations period continued during the
pendency of Mr. Rhodes’s appeal of the state trial court’s order to the Wyoming
Supreme Court. Id. But the limitations period restarted when, on February 28, 2017,
the Wyoming Supreme Court denied Mr. Rhodes relief for the second and final time.
Thus, according to the district court’s calculations, Mr. Rhodes needed to file his
3 federal habeas petition within the next thirteen days—that is, on or before March 13,
2017. Because Mr. Rhodes’s petition was not filed until May of 2017, the district
court concluded it was time-barred pursuant to § 2244(d)(1)(A) and (d)(2).
Next, the district court concluded that §§ 2244(d)(1)(B)–(D) did not save Mr.
Rhodes’s petition. As to § 2244(d)(1)(B), it acknowledged Mr. Rhodes’s argument
that he was “blocked” from getting the entire record of his trial until after the one-
year timeframe had expired, but it concluded Mr. Rhodes identified no impediment
created by state action in violation of the Constitution or laws of the United States
that could extend the accrual date. The district court also held that Mr. Rhodes failed
to indicate any possible prejudice he may have suffered by not having the trial
transcript sooner. As to § 2244(d)(1)(C), the district court held it inapplicable
because Mr. Rhodes had not cited any newly recognized, and retroactively applied,
constitutional right. As to § 2244(d)(1)(D), the district court again considered Mr.
Rhodes’s allegation that Wyoming delayed in providing him a transcript of the trial
court proceedings. It concluded that such a delay is “not the type of factual predicate
necessary to justify application” of § 2244(d)(1)(D) and, besides, the “factual” basis
for Mr. Rhodes’s asserted grounds for habeas relief, i.e., ineffective assistance of
counsel, prosecutorial misconduct, and judicial misconduct, was clearly known to
him long before he physically received the trial court hearing transcript. Finally, the
district court held that Mr. Rhodes has not supported any actual innocence exception.
See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
4 Having found no legal or factual basis to support tolling of AEDPA’s
limitations period, the district court held that Mr. Rhodes’s petition is time-barred
and must be dismissed. The district court further declined to issue a COA, based on
its belief that no jurist of reason would find it debatable that Mr. Rhodes’s petition is
time-barred. The district court entered its judgment on September 26, 2017; Mr.
Rhodes filed a timely notice of appeal on October 16, 2017. Mr. Rhodes’s application
for a COA is now before us.
II. ANALYSIS
On appeal, Mr. Rhodes has filed a twenty-six page combined opening brief and
application for certificate of appealability. He expounds eight claims of ineffective
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MARTY W. RHODES,
Petitioner - Appellant,
v. No. 17-8080 (D.C. No. 2:17-CV-00092-SWS) WYOMING DEPARTMENT OF (D. Wyoming) CORRECTIONS; MICHAEL PACHECO, Warden, Wyoming State Penitentiary; WYOMING ATTORNEY GENERAL,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
Wyoming state prisoner Marty W. Rhodes, appearing pro se,1 seeks a
certificate of appealability (“COA”) to challenge the dismissal of his petition for writ
of habeas corpus. We deny a COA and dismiss this matter.
* 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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 Because Mr. Walker is pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND
Mr. Rhodes is serving consecutive sentences for child abuse and third-degree
sexual abuse of a minor—up to twenty years, in total. See Rhodes v. State, 348 P.3d
404, 407 (Wyo. 2015). His convictions and sentences were affirmed by the Wyoming
Supreme Court on April 27, 2015. Id. at 415. On July 8, 2015, Mr. Rhodes filed a
Petition for Writ of Error Coram Nobis with the Wyoming Supreme Court, which
was denied on August 4, 2015. Nearly a year passed. On July 21, 2016, Mr. Rhodes
filed a document entitled “Petition for Post Conviction Relief with Request for
Evidentiary Hearing” in a Wyoming trial court. That court dismissed the petition in
January 2017. On February 9, 2017, Mr. Rhodes petitioned the Wyoming Supreme
Court a second time, this time by a Petition for Writ of Certiorari. Again, the
Wyoming Supreme Court denied relief. Its second and final order in Mr. Rhodes’s
case was entered on February 28, 2017.
Finding no help in Wyoming’s courts, Mr. Rhodes turned to the federal
system. On May 31, 2017, he filed a petition under 28 U.S.C. § 2254 for a writ of
habeas corpus by a person in state custody. Mr. Rhodes was again unsuccessful. The
federal district court dismissed his petition, finding it time-barred under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
2 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). However, “[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.” Id. § 2244(d)(2).
Applying § 2244(d), the district court concluded that Mr. Rhodes’s one-year
window to seek federal habeas relief commenced on August 4, 2015, when the
Wyoming Supreme Court denied his Petition for Writ of Error Coram Nobis. Three-
hundred and fifty-two days later, on July 21, 2016, Mr. Rhodes filed his request for
post-conviction relief with the state trial court. That filing, the federal district court
reasoned, tolled Mr. Rhodes’s limitations period with thirteen days to go. See
§ 2244(d)(2). The suspension of AEDPA’s limitations period continued during the
pendency of Mr. Rhodes’s appeal of the state trial court’s order to the Wyoming
Supreme Court. Id. But the limitations period restarted when, on February 28, 2017,
the Wyoming Supreme Court denied Mr. Rhodes relief for the second and final time.
Thus, according to the district court’s calculations, Mr. Rhodes needed to file his
3 federal habeas petition within the next thirteen days—that is, on or before March 13,
2017. Because Mr. Rhodes’s petition was not filed until May of 2017, the district
court concluded it was time-barred pursuant to § 2244(d)(1)(A) and (d)(2).
Next, the district court concluded that §§ 2244(d)(1)(B)–(D) did not save Mr.
Rhodes’s petition. As to § 2244(d)(1)(B), it acknowledged Mr. Rhodes’s argument
that he was “blocked” from getting the entire record of his trial until after the one-
year timeframe had expired, but it concluded Mr. Rhodes identified no impediment
created by state action in violation of the Constitution or laws of the United States
that could extend the accrual date. The district court also held that Mr. Rhodes failed
to indicate any possible prejudice he may have suffered by not having the trial
transcript sooner. As to § 2244(d)(1)(C), the district court held it inapplicable
because Mr. Rhodes had not cited any newly recognized, and retroactively applied,
constitutional right. As to § 2244(d)(1)(D), the district court again considered Mr.
Rhodes’s allegation that Wyoming delayed in providing him a transcript of the trial
court proceedings. It concluded that such a delay is “not the type of factual predicate
necessary to justify application” of § 2244(d)(1)(D) and, besides, the “factual” basis
for Mr. Rhodes’s asserted grounds for habeas relief, i.e., ineffective assistance of
counsel, prosecutorial misconduct, and judicial misconduct, was clearly known to
him long before he physically received the trial court hearing transcript. Finally, the
district court held that Mr. Rhodes has not supported any actual innocence exception.
See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
4 Having found no legal or factual basis to support tolling of AEDPA’s
limitations period, the district court held that Mr. Rhodes’s petition is time-barred
and must be dismissed. The district court further declined to issue a COA, based on
its belief that no jurist of reason would find it debatable that Mr. Rhodes’s petition is
time-barred. The district court entered its judgment on September 26, 2017; Mr.
Rhodes filed a timely notice of appeal on October 16, 2017. Mr. Rhodes’s application
for a COA is now before us.
II. ANALYSIS
On appeal, Mr. Rhodes has filed a twenty-six page combined opening brief and
application for certificate of appealability. He expounds eight claims of ineffective
assistance of trial counsel, nine claims of ineffective assistance of appellate counsel
on direct appeal, three claims of prosecutorial misconduct, and four claims of judicial
misconduct. But there is nary a word addressing the reasons for dismissal actually
given by the district court.
“A state prisoner needs a COA to appeal a denial of federal habeas relief.”
Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). To obtain the certificate,
Mr. Rhodes must make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). And where, as here, the district court disposed of a habeas
action as time-barred, a petitioner must also show “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); Ring v. Lightle, 655 F. App’x 657, 658 (10th
Cir. 2016). Upon careful review of the procedural history, we agree with the district
5 court’s conclusion that Mr. Rhodes’s petition is time-barred. Indeed, Mr. Rhodes has
not even attempted to address whether jurists of reason would find it debatable
whether the district court was correct in that procedural ruling. He is therefore not
entitled to a COA. See Davis, 798 F.3d at 1319 (“To demonstrate an entitlement to a
COA, the prisoner must show that ‘reasonable jurists could debate whether . . . the
issues presented were adequate to deserve encouragement to proceed further.’”
(quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003))).
III. CONCLUSION
For the foregoing reasons, we DENY a COA and DISMISS this appeal.
Entered for the Court
Carolyn B. McHugh Circuit Judge