United States v. Howard ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 13, 2020
___________________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-6176
(D.C. No. 5:18-CV-00897-D &
TROY DEWAYNE HOWARD, 5:13-CR-00165-D-1
(W.D. Okla.)
Defendant - Appellant.
___________________________________________
ORDER
___________________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
___________________________________________
This is Mr. Troy Dewayne Howard’s collateral challenge to a federal
conviction. 1 A one-year limitations period applies, 28 U.S.C. § 2255(f), but
Mr. Howard waited four years to begin this collateral challenge. The
federal district court thus dismissed the challenge as untimely, and Mr.
Howard wants to appeal.
To appeal, he needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B). We can grant the certificate only if Mr. Howard’s
1
The conviction was for distribution of child pornography. 18 U.S.C.
§ 2252A(a)(1).
appellate argument is reasonably debatable. Slack v. McDaniel, 529 U.S.
473, 483–84 (2000).
In the absence of tolling, the one-year period of limitations would
have expired before Mr. Howard brought this challenge. The one-year
period of limitations started when Mr. Howard’s conviction became final.
See 28 U.S.C. § 2255(f)(1). 2 Mr. Howard’s sentencing took place on
January 30, 2014, and Mr. Howard did not appeal, so his conviction
became final on Monday, March 3, 2014. But Mr. Howard waited until
September 5, 2018, to mail the collateral challenge to the court clerk. See
Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (stating that a
prisoner’s habeas petition is deemed “filed” when placed in the prison’s
mail system).
Mr. Howard argues that the district court erred by failing to
adequately consider the possibility of equitable tolling. Under equitable
tolling, a claimant can obtain additional time by showing that (1) the
claimant was pursuing his or her rights diligently and (2) the delay was
caused by an “extraordinary circumstance” beyond his or her control.
Holland v. Florida, 560 U.S. 631, 649 (2010).
We have never found equitable tolling based on a claimant’s mental
capacity. See Harms v. IRS, 321 F.3d 1001, 1006 (10th Cir. 2003). But we
2
In some circumstances, the one-year period runs from a different
date. See 28 U.S.C. § 2255(f). But these circumstances do not apply here.
2
can assume for the sake of argument that mental disease and intellectual
deficits could justify equitable tolling. Even with this assumption,
however, Mr. Howard would “bear a strong burden to show specific facts
to support his claim of extraordinary circumstances and due diligence.”
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). Mr. Howard seeks
to satisfy this burden based on a letter and psychological evaluation, but
these documents would not trigger equitable tolling.
In the letter, Mr. Howard requested an attorney. By the time of the
letter, however, the limitations period had already expired. So equitable
tolling would not have salvaged the collateral challenge. See Fisher v.
Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001) (concluding that a
federal habeas petition was not tolled based on time in state collateral
proceedings when the prisoner did not file in state court until expiration of
the federal deadline).
The psychological evaluation reflected diagnoses of borderline
intellectual functioning, schizoaffective disorder, and bipolar disorder. But
the psychological evaluation did not show that Mr. Howard was
incompetent to participate in legal proceedings or unable to pursue his
legal claims. Without such a showing, the court cannot toll the one-year
period of limitations. See Biester v. Midwest Health Serv., Inc., 77 F.3d
1264, 1268 (10th Cir. 1998) (concluding that the limitations period was not
3
tolled in the absence of an adjudication of incompetency,
institutionalization, or inability to pursue the claim). 3
Given the indisputable failure to justify equitable tolling, no
reasonable jurist could question the correctness of the district court’s
ruling. We thus decline to issue a certificate of appealability. In the
absence of a certificate, we also dismiss the appeal. See p. 1, above.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3
Mr. Howard does not present evidence that institutionalization
prevented him from meeting the filing deadline. Although Mr. Howard has
a history of mental health treatment, his last treatment reportedly occurred
in 2009.
4