United States v. Arrington , 187 F. App'x 838 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-1256
(D. Colorado)
C LIFFO RD D IO N E A RR IN G TON, (D.Ct. No. 04-W M -1430)
Defendant - Appellant.
____________________________
OR D ER D EN YING LEAVE TO PROCEED
O N APPEAL IN FO RM A PAUPERIS,
D EN Y IN G C ER TIFICATE OF APPEALABILITY,
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Clifford Dione Arrington, a federal prisoner proceeding pro se, 1 filed a
motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The
district court denied the motion, as well as Arrington’s subsequent motion for
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
reconsideration. A rrington then requested a certificate of appealability (COA)
and leave to proceed in form a pauperis (ifp) on appeal. The district court denied
a COA because Arrington had not made a substantial showing of the denial of a
constitutional right. The court also denied his motion to proceed ifp because it
was deficient in that it lacked the necessary financial information. Arrington has
filed with this Court an application for a COA and a motion for leave to proceed
ifp. See 28 U.S.C.§§ 2253(c)(1)(B); F ED . R. A PP . P. 22(b)(1), 24(a)(5). W e
DENY his application for a COA and his motion to proceed ifp.
Background
In February 2001, Arrington was convicted by a jury of one count of
conspiracy to distribute cocaine or crack cocaine, and eleven counts of
distribution of crack cocaine. On September 10, 2001, he was sentenced to 188
months imprisonment. His conviction was affirmed on direct appeal, United
States v. Arrington, 46 Fed. Appx. 935 (10th Cir. 2002), and on June 9, 2003, the
United States Supreme Court denied his petition for a writ of certiorari.
Arrington v. United States, 539 U.S. 921 (2003).
Arrington’s § 2255 motion was filed with the district court on July 12,
2004. The district court denied the motion as barred by the one-year statute of
limitations established by 28 U.S.C. § 2255. 2 Arrington filed a motion for
2
Paragraph 6 of § 2255 provides: “A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall run from the latest of—(1) the date
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reconsideration, arguing the date his conviction became final was July 4, 2004,
when the time for filing a petition for rehearing expired, and not June 9, 2003, the
date the Supreme Court denied his petition for writ of certiorari. The district
court denied this motion, as well as Arrington’s motions for a COA and to
proceed ifp on appeal.
Discussion
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Arrington
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Because the district court dismissed his habeas petition on
procedural grounds, Arrington must demonstrate both “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. Arrington has not met this
burden.
on which the judgment of conviction becomes final . . . .”
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“W here a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id. The district court correctly found Arrington’s
motion was time-barred. Arrington’s sentence became final on June 9, 2003,
when the Supreme Court denied his petition for a writ of certiorari, regardless of
the fact he filed a petition for rehearing from the denial of certiorari. See United
States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000). His § 2255 motion was
filed on July 12, 2004, one month past the one year statute of limitations.
Arrington’s argument that he is entitled to the application of equitable
tolling is without merit. His confusion about when his conviction was final does
not constitute a “rare and exceptional circumstance[]” warranting equitable tolling
of the statute. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations
omitted); see also Willis, 202 F.3d at 1281 n.3 (case must present extraordinary
circumstances to w arrant equitable tolling of statute of limitations). Because
reasonable jurists could not conclude the district court erred in dismissing
Arrington’s § 2255 motion as untimely, we DENY his request for a COA and
dismiss his application.
Because Arrington has not shown “the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we
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DENY his motion to proceed ifp and order him to remit the full amount of the
filing fee w ithin twenty days.
D ISM ISSE D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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