United States v. Verdin-Garcia

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 7, 2021
• Docket: 21-3047
• Status: Unpublished

Opinion

Appellate Case: 21-3047 Document: 010110615699 Date Filed: 12/07/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 7, 2021 _______________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 21-3047 v. (D.C. No. 2:09-CV-02492-JWL) (D. Kan.) FIDENCIO VERDIN-GARCIA,

Defendant - Appellant. _______________________________________

ORDER _______________________________________

Before BACHARACH, MURPHY, and CARSON, Circuit Judges. _______________________________________

This case grew out of an effort to reopen an old collateral challenge

to a federal conviction. The federal district court rejected the collateral

challenge in 2010. Over ten years later, the defendant (Mr. Fidencio

Verdin-Garcia) moved to reopen the proceedings under Fed. R. Civ. P.

60(b)(6). The district court denied the motion as untimely.

To appeal that ruling, Mr. Verdin-Garcia needs a certificate of

appealability. Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir. 2006). We

can grant the certificate only if an appellate argument is reasonably

debatable. See Laurson v. Leyba, 507 F.3d 1230, 1231–32 (10th Cir. 2007).

If we were to entertain an appeal, we would review the district court’s

ruling only for an abuse of discretion. Jackson v. Los Lunas Cmty. Prog., Appellate Case: 21-3047 Document: 010110615699 Date Filed: 12/07/2021 Page: 2

880 F.3d 1176, 1191 (10th Cir. 2018). In our view, no reasonable jurist

would find an abuse of discretion. So we deny the request for a certificate.

In denying the motion to reopen as untimely, the district court

pointed out that Mr. Verdin-Garcia had needed to file his motion within a

“reasonable time” after the denial of his collateral challenge. Fed. R. Civ.

P. 60(b)(6). So the district court needed to decide whether the delay of

over ten years had been reasonable.

Mr. Verdin-Garcia points out that he does not speak English, the

prison’s legal materials were available only in English, and he couldn’t

obtain appointment of counsel. But our issue isn’t whether some delay was

reasonable; the issue is instead whether the district court erred by viewing

a delay of over ten years as unreasonable.

Mr. Verdin-Garcia’s factual allegations do little to explain the delay

of over ten years. He knew in 2010, when he received the ruling, that he

didn’t speak English, had no legal materials that he could read, and lacked

an attorney. Perhaps he needed someone to translate the order denying his

motion to vacate the sentence. But even if he needed a translator, any

reasonable jurist would conclude that the district court acted within its

discretion in concluding that the delay of over ten years was unreasonable.

2 Appellate Case: 21-3047 Document: 010110615699 Date Filed: 12/07/2021 Page: 3

Mr. Verdin-Garcia thus lacks a reasonably debatable argument for reversal,

and we deny his request for a certificate of appealability. 1

Matter dismissed.

Entered for the Court

Robert E. Bacharach Circuit Judge

1 Mr. Verdin-Garcia also seeks leave to proceed in forma pauperis. Because Mr. Verdin-Garcia cannot afford to prepay the $505 filing fee, we grant leave to proceed in forma pauperis. 3