Ritterbush v. Benzon

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 16, 2019
• Docket: 19-4074
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 16, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court LYNDAL D. RITTERBUSH,

Petitioner - Appellant,

v. No. 19-4074 (D.C. No. 2:17-CV-00913-RJS) LARRY BENZON, (D. Utah)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges. _________________________________

This matter is before the court on Lyndal D. Ritterbush=s pro se request for a

certificate of appealability (ACOA@). Ritterbush seeks a COA so he can appeal the district

court=s dismissal, on timeliness grounds, of his 28 U.S.C. ' 2254 habeas petition. See 28

U.S.C. ' 2253(c)(1)(A) (providing no appeal may be taken from Aa final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a

State court@ without first obtaining a COA); id. ' 2244(d)(1) (setting out a one-year

statute of limitations on ' 2254 petitions, running from the date on which the conviction

became final). Because Ritterbush has not Amade a substantial showing of the denial of a

constitutional right,@ id. ' 2253(c)(2), this court denies his request for a COA and

dismisses this appeal. In 1984, Ritterbush pleaded guilty in Utah state court to attempted aggravated

sexual abuse of a child, a first degree felony. On November 23, 1984, the trial court

sentenced him to a term of imprisonment of from five years to life. Ritterbush filed the

instant ' 2254 habeas petition in 2017. Upon the state of Utah=s motion, the district court

dismissed Ritterbush=s petition as untimely. In so doing, the district court noted that

because Ritterbush=s conviction became final before Congress passed the Antiterrorism

and Effective Death Penalty Act of 1996, Ritterbush had to file his federal habeas petition

within one year of April 24, 1996. See Gibson v. Klinger, 232 F.3d 799, 803, 808 (10th

Cir. 2000). Instead, Ritterbush filed his ' 2254 petition some twenty-one years later.

The district court further noted Ritterbush was not entitled to statutory tolling because he

did not file a state-court request for collateral relief within the relevant time period. See

28 U.S.C. ' 2244(d)(2); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

Finally, the district court determined Ritterbush had not demonstrated the kind of

extraordinary circumstances that would come close to equitably tolling the extreme

twenty-year delay in the filing of his habeas petition. See Al-Yousif v. Trani, 779 F.3d

1173, 1179 (10th Cir. 2015) (holding that A[e]quitable tolling is a rare remedy to be

applied in unusual circumstances@ (quotation omitted)).

The granting of a COA is a jurisdictional prerequisite to Ritterbush=s appeal from

the dismissal of his ' 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To

be entitled to a COA, he must make Aa substantial showing of the denial of a

constitutional right.@ 28 U.S.C. ' 2253(c)(2). To make the requisite showing, he must

demonstrate Areasonable jurists could debate whether (or, for that matter, agree that) the 2 petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.@ Miller-El, 537 U.S. at 336

(quotations omitted). When a district court dismisses a ' 2254 motion on procedural

grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists

would find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court=s procedural ruling was correct. Slack v. McDaniel, 529 U.S.

473, 484-85 (2000). In evaluating whether Ritterbush has satisfied his burden, this court

undertakes Aa preliminary, though not definitive, consideration of the [legal] framework@

applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Ritterbush need

not demonstrate his appeal will succeed to be entitled to a COA, he must Aprove

something more than the absence of frivolity or the existence of mere good faith.@ Id.

(quotations omitted). As a further overlay on this standard, we review for abuse of

discretion the district court=s decision that Ritterbush is not entitled to have the limitations

period set out in ' 2244(d)(1) equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141

(10th Cir. 2003).

Having undertaken a review of Ritterbush=s appellate filings, the district court=s

order of dismissal, and the entire record before this court pursuant to the framework set

out by the Supreme Court in Miller-El and Slack, we conclude Ritterbush is not entitled

to a COA. The district court=s resolution of Ritterbush=s ' 2254 motion is not deserving

of further proceedings or subject to a different resolution on appeal. In so concluding,

there is no need for this court to repeat the cogent and convincing analysis set out in the

district court=s order. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017) (holding that the 3 process of resolving whether a petitioner is entitled to a COA should not devolve into a

determination of the merits). Accordingly, this court DENIES Ritterbush=s request for a

COA and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge