Banks v. Trani


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  •                                                                        FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
    
                                                                      April 16, 2010
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                       Clerk of Court
                                       TENTH CIRCUIT
    
    
     BENJAMIN K. BANKS,
    
              Petitioner-Appellant,
     v.
    
     TRAVIS TRANI, Warden, and                              No. 10-1043
     ATTORNEY GENERAL OF THE                        (D.C. No. 1:09-cv-2173-ZLW)
     STATE OF COLORADO,                                       (D. Colo.)
    
              Respondents-Appellees.
    
    
    
                ORDER DENYING CERTIFICATE OF APPEALABILITY *
    
    
    Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
    
    
          Benjamin K. Banks was convicted in Colorado state court on 40 counts,
    
    including violation of the Colorado Organized Crimes Act, conspiracy and
    
    possession of controlled substances, forgery, theft, and computer crime. He was
    
    sentenced to a prison term of eighty-four years. On direct review, the Colorado
    
    Court of Appeals affirmed his conviction and the Colorado Supreme Court denied
    
    his petition for a writ of certiorari on November 18, 2002.
    
    
    
    
          *
            This order is not binding precedent except under the doctrines of law of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.
          Mr. Banks then filed in state court a request for appointment of post-
    
    conviction counsel on December 19, 2002. Counsel was appointed three months
    
    later, but withdrew in December 2004, on the ground that she “could find no good
    
    faith basis” for the claim Mr. Banks desired to bring — a claim of ineffective
    
    assistance of counsel. Shortly thereafter, also in December 2004, Mr. Banks filed
    
    a pro se motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c),
    
    which the state trial court denied. The Colorado Court of Appeals affirmed that
    
    decision and the Colorado Supreme Court denied certiorari. Mr. Banks later filed
    
    a second motion for post-conviction relief that was again denied.        On
    
    September 11, 2009, Mr. Banks filed in federal district court the instant petition
    
    for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court,
    
    however, dismissed the petition as time-barred.
    
          Mr. Banks now seeks from us a certificate of appealability (“COA”) to
    
    appeal the district court’s dismissal of his § 2254 petition. We may issue a COA
    
    only if the petitioner makes a “substantial showing of the denial of a
    
    constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court
    
    dismisses a § 2254 petition on procedural grounds, we may issue a COA only if
    
    “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). We
    
    conclude that the district court was unquestionably correct in holding Mr. Banks’s
    
    
    
    
                                             -2-
    petition time-barred, and thus deny his application for a COA and dismiss this
    
    appeal.
    
          A petitioner seeking federal habeas relief under § 2254 generally must
    
    bring his motion within one year from the date on which his conviction “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). In Mr. Banks’s case, the Colorado
    
    Supreme Court denied his petition for a writ of certiorari on November 18, 2002,
    
    after which he had ninety days to seek review by the United States Supreme
    
    Court. His one-year window to file a § 2254 petition, then, opened on
    
    approximately February 18, 2003, and closed on approximately February 18,
    
    2004. Mr. Banks filed his petition in federal district court on September 11,
    
    2009, more than five years after that window closed. Accordingly, unless
    
    something acted to toll the one-year limitations period, Mr. Banks’s petition was
    
    plainly time-barred.
    
          Mr. Banks makes two arguments for tolling the one-year limitations period.
    
    Neither is availing.
    
          First, Mr. Banks claims his request for appointment of post-conviction
    
    counsel in state court, filed on December 19, 2002, tolled the statute of
    
    limitations. While it is certainly true that the one-year limitations period doesn’t
    
    run while a properly filed application for state collateral review is pending, see 28
    
    U.S.C. § 2244(d)(2), Mr. Banks’s request for post-conviction counsel doesn’t
    
                                             -3-
    qualify as such. “A state post-conviction application is ‘properly filed’ if it
    
    satisfies the State’s requirements for filing such a pleading.” Robinson v. Golder,
    
    
    443 F.3d 718
    , 720 (10th Cir. 2006). In this case, as the district court observed,
    
    Mr. Banks’s one-page request for appointment of post-conviction counsel “did not
    
    state any factual or legal grounds for relief,” as Colo. R. Crim. P. 35(c) requires,
    
    but rather only sought counsel to draft a Rule 35 motion for him. App. at 213
    
    (internal quotation marks omitted). As a result, and as the district court held, Mr.
    
    Banks’s request for post-conviction counsel did not qualify as a properly filed
    
    application for collateral relief under Colorado law and so did not toll the
    
    limitations period for a § 2254 petition. Indeed, we have held other petitions
    
    time-barred in circumstances materially identical to these. See, e.g., Pursley v. Al
    
    Estep, 216 F. App’x 733, 734 (10th Cir. 2007) (unpublished) (holding that
    
    petitioner’s motions for appointment of post-conviction counsel did not toll the
    
    limitations period because they did not “state adequate factual or legal grounds
    
    for relief, as required” by Colo. R. Crim. P. 35(c) (internal quotation marks
    
    omitted)); Gilbert v. Reid, 217 F. App’x 762, 765 (10th Cir. 2007) (same).
    
          Second, Mr. Banks argues he is entitled to equitable tolling of the
    
    limitations period because the delay in filing his Rule 35 motion was the fault of
    
    his court-appointed counsel. Equitable tolling “is only available when an inmate
    
    diligently pursues his claims and demonstrates that the failure to timely file was
    
    caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223
    
                                             -4-
    F.3d 1217, 1220 (10th Cir. 2000). After reviewing the record of this case, we
    
    conclude that Mr. Banks can satisfy neither of these requirements.
    
          Taking the extraordinary circumstances requirement first, even if we were
    
    to assume without deciding that Mr. Banks is correct some attorney negligence
    
    took place here, that will rarely qualify as an extraordinary circumstance meriting
    
    equitable tolling under this court’s precedents because “clients, even if
    
    incarcerated, must ‘vigilantly oversee,’ and ultimately bear responsibility for,
    
    their attorneys’ actions or failures.” Fleming v. Evans, 
    481 F.3d 1249
    , 1255-56
    
    (10th Cir. 2007) (quoting Modrowski v. Mote, 
    322 F.3d 965
    , 968 (7th Cir. 2003)).
    
    Particularly egregious attorney misconduct, such as repeated, deceitful assurances
    
    that a habeas petition would soon be filed, may entitle a petitioner to equitable
    
    tolling. See id. at 1256-57. But Mr. Banks does not make any such allegations in
    
    this case, and so fails to establish the sort of extraordinary circumstances required
    
    by our precedents for equitable tolling.
    
          Likewise, while Mr. Banks submits that he tried to pursue his federal
    
    habeas claims, our case law requires that he “allege with specificity the steps he
    
    took to diligently pursue his federal claims” in order to meet the diligence
    
    requirement associated with equitable tolling. Yang v. Archuleta, 
    525 F.3d 925
    ,
    
    930 (10th Cir. 2008) (internal quotation marks omitted); see also Miller v. Marr,
    
    
    141 F.3d 976
    , 978 (10th Cir. 1998) (finding petitioner “provided no specificity
    
    regarding the alleged . . . steps he took to diligently pursue his federal [habeas]
    
                                               -5-
    claim” and concluding that petitioner “simply did not know about the [one-year]
    
    limitation”); cf. Fleming, 481 F.3d at 1257 (finding that petitioner diligently
    
    pursued his habeas claims when, in response to his counsel’s inaction, he drafted
    
    his own petition for post-conviction relief, which he submitted to counsel for
    
    review, in order to satisfy the one-year limitations period). Mr. Banks has failed
    
    to do this. While he asserts that he promptly filed in state court a request for
    
    post-conviction counsel upon the completion of direct review, he fails to detail
    
    any steps taken after that request. Accordingly, we must agree with the district
    
    court that Mr. Banks isn’t entitled to equitable tolling of the one-year limitations
    
    period.
    
          Because neither statutory nor equitable tolling served to extend the time in
    
    which Mr. Banks could file a habeas petition under § 2254, reasonable jurists
    
    could not debate whether his petition was time-barred. Accordingly, we deny his
    
    application for a COA and dismiss this appeal.
    
    
    
                                            ENTERED FOR THE COURT
    
    
                                            Neil M. Gorsuch
                                            Circuit Judge
    
    
    
    
                                             -6-
    

Document Info

DocketNumber: 10-1043

Filed Date: 4/16/2010

Status: Non-Precedential

Modified Date: 11/14/2013

Retrieved Date: 4/16/2010

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