FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 21, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ONG VUE,
Petitioner - Appellant,
v. No. 17-6213 (D.C. No. 5:17-CV-00857-HE) JANET DOWLING, Warden, Dick Conner (W.D. Okla.) Correctional Center,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges. _________________________________
Ong Vue, a state prisoner proceeding 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. He also seeks leave to file a “Motion
to Certify Question of Law to Oklahoma Supreme Court” and a “Motion to Confer
Standing as a Member of a Peculiar Suspect Class.” Exercising jurisdiction under 28
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Vue is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.”). U.S.C. § 1291, we deny the COA and dismiss this matter. We also dismiss as moot
his request to file the motions.
I. BACKGROUND
In 1998, Mr. Vue pled no contest in Oklahoma state court to one count of
murder in the first degree and two counts of shooting with intent to kill. On June 1,
1998, he was sentenced to life in prison for the murder conviction and two 20-year
terms for the shooting with intent to kill convictions. Mr. Vue did not appeal these
convictions in state court. Instead, his trial counsel filed a motion to modify his
original sentence, which the Oklahoma state trial court granted in September of
1998.2 In July 2016, Mr. Vue sought post-conviction relief in state court. That
request was denied, and the Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed.
On August 12, 2016, Mr. Vue filed a 28 U.S.C. § 2241 petition in the United
States District Court for the Western District of Oklahoma seeking relief from an
immigration removal order and raising claims of ineffective assistance of counsel.
See Ong Vue v. Allbaugh, 682 F. App’x 636, 638-39 (10th Cir. 2017). The district
court construed Mr. Vue’s petition as a request for relief under § 2254 and dismissed
2 Under Mr. Vue’s original sentence, the 20-year terms were to run concurrently with each other but consecutively to the life sentence. The Oklahoma state trial court granted Mr. Vue’s request to modify the sentence, ordering that one of the 20-year terms would run concurrently with the life sentence. See Ong Vue v. Allbaugh, 682 F. App’x 636, 638 (10th Cir. 2017).
2 it as unexhausted and time-barred. On review, this court denied a COA and
dismissed the appeal. Id. at 639.
Mr. Vue later filed two applications to bring a successive § 2254 claim based
on ineffective assistance of counsel. This court denied his first request, holding that
Mr. Vue had not shown he was relying on “a new rule of constitutional law” or
“newly discovered evidence.” See Order dated June 1, 2017 at 2 (17-6124).
Regarding his second request, we found that Mr. Vue was not required to obtain
circuit authorization to challenge his state convictions under § 2254 because the
district court had failed to provide him adequate notification before construing his
§ 2241 petition as, in part, a first § 2254 application. See Order dated July 31, 2017
at 2 (17-6161). This court thus denied his request for authorization as unnecessary
and permitted him to file a § 2254 application in district court to challenge his
convictions. See id. at 1.
A magistrate judge issued a report and recommendation (“R & R”) concluding
that Mr. Vue’s habeas application was untimely under the one-year statute of
limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and that
neither statutory nor equitable tolling was warranted. The district court adopted the
R & R and dismissed Mr. Vue’s habeas application as untimely. It issued separate
orders denying Mr. Vue leave to proceed in forma pauperis (“ifp”) on appeal and
declining to grant a COA. After the district court denied ifp, Mr. Vue paid the filing
fee in full.
3 II. DISCUSSION
Mr. Vue contends he is entitled to equitable tolling because his attorney failed
to pursue a direct appeal of his 1998 Oklahoma state convictions. We conclude
under the alleged facts that he is not entitled to equitable tolling for 17 years—the
time that elapsed between when his conviction became final and when he first sought
federal habeas relief. The district court did not abuse its discretion in denying
equitable tolling, reasonable jurists would not disagree, and a COA is unwarranted.
A. Legal Background
1. Certificate of Appealability
Mr. Vue may not appeal the district court’s denial of his § 2254 application
without a COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). To receive a COA, an applicant must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district
court denied Mr. Vue’s habeas application on procedural grounds “without reaching
the prisoner’s underlying constitutional claim,” a COA cannot issue unless Mr. Vue
shows both (1) “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,” and (2) “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); accord Dulworth v. Jones,
496 F.3d 1133, 1137 (10th Cir. 2007). Because we may “resolve the issue whose
answer is more apparent from the record and arguments,” Slack, 529 U.S. at 485, we
4 start and end our discussion with the second ground concerning the district court’s
procedural ruling.
2. Statute of Limitations
Mr. Vue challenges the district court’s conclusion that his claim was
procedurally barred and that equitable tolling was unwarranted. “[W]e review the
district court’s decision on equitable tolling of the limitation period for an abuse of
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 21, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ONG VUE,
Petitioner - Appellant,
v. No. 17-6213 (D.C. No. 5:17-CV-00857-HE) JANET DOWLING, Warden, Dick Conner (W.D. Okla.) Correctional Center,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges. _________________________________
Ong Vue, a state prisoner proceeding 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. He also seeks leave to file a “Motion
to Certify Question of Law to Oklahoma Supreme Court” and a “Motion to Confer
Standing as a Member of a Peculiar Suspect Class.” Exercising jurisdiction under 28
* 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. Vue is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.”). U.S.C. § 1291, we deny the COA and dismiss this matter. We also dismiss as moot
his request to file the motions.
I. BACKGROUND
In 1998, Mr. Vue pled no contest in Oklahoma state court to one count of
murder in the first degree and two counts of shooting with intent to kill. On June 1,
1998, he was sentenced to life in prison for the murder conviction and two 20-year
terms for the shooting with intent to kill convictions. Mr. Vue did not appeal these
convictions in state court. Instead, his trial counsel filed a motion to modify his
original sentence, which the Oklahoma state trial court granted in September of
1998.2 In July 2016, Mr. Vue sought post-conviction relief in state court. That
request was denied, and the Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed.
On August 12, 2016, Mr. Vue filed a 28 U.S.C. § 2241 petition in the United
States District Court for the Western District of Oklahoma seeking relief from an
immigration removal order and raising claims of ineffective assistance of counsel.
See Ong Vue v. Allbaugh, 682 F. App’x 636, 638-39 (10th Cir. 2017). The district
court construed Mr. Vue’s petition as a request for relief under § 2254 and dismissed
2 Under Mr. Vue’s original sentence, the 20-year terms were to run concurrently with each other but consecutively to the life sentence. The Oklahoma state trial court granted Mr. Vue’s request to modify the sentence, ordering that one of the 20-year terms would run concurrently with the life sentence. See Ong Vue v. Allbaugh, 682 F. App’x 636, 638 (10th Cir. 2017).
2 it as unexhausted and time-barred. On review, this court denied a COA and
dismissed the appeal. Id. at 639.
Mr. Vue later filed two applications to bring a successive § 2254 claim based
on ineffective assistance of counsel. This court denied his first request, holding that
Mr. Vue had not shown he was relying on “a new rule of constitutional law” or
“newly discovered evidence.” See Order dated June 1, 2017 at 2 (17-6124).
Regarding his second request, we found that Mr. Vue was not required to obtain
circuit authorization to challenge his state convictions under § 2254 because the
district court had failed to provide him adequate notification before construing his
§ 2241 petition as, in part, a first § 2254 application. See Order dated July 31, 2017
at 2 (17-6161). This court thus denied his request for authorization as unnecessary
and permitted him to file a § 2254 application in district court to challenge his
convictions. See id. at 1.
A magistrate judge issued a report and recommendation (“R & R”) concluding
that Mr. Vue’s habeas application was untimely under the one-year statute of
limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and that
neither statutory nor equitable tolling was warranted. The district court adopted the
R & R and dismissed Mr. Vue’s habeas application as untimely. It issued separate
orders denying Mr. Vue leave to proceed in forma pauperis (“ifp”) on appeal and
declining to grant a COA. After the district court denied ifp, Mr. Vue paid the filing
fee in full.
3 II. DISCUSSION
Mr. Vue contends he is entitled to equitable tolling because his attorney failed
to pursue a direct appeal of his 1998 Oklahoma state convictions. We conclude
under the alleged facts that he is not entitled to equitable tolling for 17 years—the
time that elapsed between when his conviction became final and when he first sought
federal habeas relief. The district court did not abuse its discretion in denying
equitable tolling, reasonable jurists would not disagree, and a COA is unwarranted.
A. Legal Background
1. Certificate of Appealability
Mr. Vue may not appeal the district court’s denial of his § 2254 application
without a COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). To receive a COA, an applicant must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district
court denied Mr. Vue’s habeas application on procedural grounds “without reaching
the prisoner’s underlying constitutional claim,” a COA cannot issue unless Mr. Vue
shows both (1) “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,” and (2) “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); accord Dulworth v. Jones,
496 F.3d 1133, 1137 (10th Cir. 2007). Because we may “resolve the issue whose
answer is more apparent from the record and arguments,” Slack, 529 U.S. at 485, we
4 start and end our discussion with the second ground concerning the district court’s
procedural ruling.
2. Statute of Limitations
Mr. Vue challenges the district court’s conclusion that his claim was
procedurally barred and that equitable tolling was unwarranted. “[W]e review the
district court’s decision on equitable tolling of the limitation period for an abuse of
discretion.” Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Under AEDPA, state prisoners have one year from the day their state court
conviction becomes final to seek habeas relief. 28 U.S.C. § 2244(d)(1). As relevant
here, a state conviction is final either when direct review has concluded or when the
period during which direct review can be sought has expired. Id. To qualify for
equitable tolling, an applicant must show “(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).
Attorney negligence can warrant equitable tolling in “extraordinary
instance[s]” when the conduct constitutes “far more than ‘garden variety’ or
‘excusable neglect.’” Id. at 652. The petitioner bears the burden of demonstrating
that equitable tolling is appropriate. Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998).
5 B. Analysis
Mr. Vue’s conviction became final in June 1998—ten days after his conviction
was entered and the date on which his opportunity to seek direct review ended. See
ROA at 148; see also Okla. Stat. tit. 22, § 1051; Rules of Oklahoma Court of
Criminal Appeals 4.2. The one-year period for filing a habeas application ended in
June 1999. He filed his habeas application 17 years later—long after AEDPA’s one-
year statute of limitations had expired. Thus, the district court was correct to
conclude that Mr. Vue’s application is time-barred unless he can show he is entitled
to tolling of the limitations period.
Mr. Vue contends equitable tolling is warranted based on his attorney’s failure
to (1) file a motion to withdraw his plea or (2) file a timely appeal. But he fails to
provide sufficient evidence that his lawyer’s purported negligence prevented him
from filing a habeas application within the one-year limitations period.
Mr. Vue offers no corroboration—other than his own affidavit—of his claim
that a May 29, 1998 conversation with his attorney led him to believe that she would
pursue an appeal. He claims he believed the attorney had perfected his appeal, but he
provides no explanation for his failure to follow up on the matter for the 17 years that
passed between the time his conviction became final and the time he sought habeas
relief in federal court. Even if Mr. Vue’s version of the events is correct, he has
failed to demonstrate the diligence necessary for equitable tolling to apply or that the
district court abused its discretion in denying equitable tolling. Accordingly, he
6 cannot show that reasonable jurists would differ over whether the district court
properly dismissed his habeas application.
III. CONCLUSION
Mr. Vue filed his § 2254 application long after AEDPA’s one-year statute of
limitations expired, and he has not demonstrated that equitable tolling is warranted or
that reasonable jurists would debate whether the district court abused its discretion.
We therefore deny his request for a COA and dismiss his appeal. We also dismiss as
moot his “Motion to Certify Question of Law to Oklahoma Supreme Court” and the
“Motion to Confer Standing as a Member of a Peculiar Suspect Class.”
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge