Ritterbush v. Benzon ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2019
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Elisabeth A. Shumaker
Clerk of Court
LYNDAL D. RITTERBUSH,
Petitioner - Appellant,
v. No. 19-4074
(D.C. No. 2:17-CV-00913-RJS)
LARRY BENZON, (D. Utah)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE
OF APPEALABILITY
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Before HOLMES, MURPHY, and CARSON, Circuit Judges.
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This matter is before the court on Lyndal D. Ritterbush=s pro se request for a
certificate of appealability (ACOA@). Ritterbush seeks a COA so he can appeal the district
court=s dismissal, on timeliness grounds, of his 28 U.S.C. ' 2254 habeas petition. See 28
U.S.C. ' 2253(c)(1)(A) (providing no appeal may be taken from Aa final order in a habeas
corpus proceeding in which the detention complained of arises out of process issued by a
State court@ without first obtaining a COA); id. ' 2244(d)(1) (setting out a one-year
statute of limitations on ' 2254 petitions, running from the date on which the conviction
became final). Because Ritterbush has not Amade a substantial showing of the denial of a
constitutional right,@ id. ' 2253(c)(2), this court denies his request for a COA and
dismisses this appeal.
In 1984, Ritterbush pleaded guilty in Utah state court to attempted aggravated
sexual abuse of a child, a first degree felony. On November 23, 1984, the trial court
sentenced him to a term of imprisonment of from five years to life. Ritterbush filed the
instant ' 2254 habeas petition in 2017. Upon the state of Utah=s motion, the district court
dismissed Ritterbush=s petition as untimely. In so doing, the district court noted that
because Ritterbush=s conviction became final before Congress passed the Antiterrorism
and Effective Death Penalty Act of 1996, Ritterbush had to file his federal habeas petition
within one year of April 24, 1996. See Gibson v. Klinger, 232 F.3d 799, 803, 808 (10th
Cir. 2000). Instead, Ritterbush filed his ' 2254 petition some twenty-one years later.
The district court further noted Ritterbush was not entitled to statutory tolling because he
did not file a state-court request for collateral relief within the relevant time period. See
28 U.S.C. ' 2244(d)(2); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
Finally, the district court determined Ritterbush had not demonstrated the kind of
extraordinary circumstances that would come close to equitably tolling the extreme
twenty-year delay in the filing of his habeas petition. See Al-Yousif v. Trani, 779 F.3d
1173, 1179 (10th Cir. 2015) (holding that A[e]quitable tolling is a rare remedy to be
applied in unusual circumstances@ (quotation omitted)).
The granting of a COA is a jurisdictional prerequisite to Ritterbush=s appeal from
the dismissal of his ' 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To
be entitled to a COA, he must make Aa substantial showing of the denial of a
constitutional right.@ 28 U.S.C. ' 2253(c)(2). To make the requisite showing, he must
demonstrate Areasonable jurists could debate whether (or, for that matter, agree that) the
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petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.@ Miller-El, 537 U.S. at 336
(quotations omitted). When a district court dismisses a ' 2254 motion on procedural
grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists
would find it debatable whether he had stated a valid constitutional claim and debatable
whether the district court=s procedural ruling was correct. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). In evaluating whether Ritterbush has satisfied his burden, this court
undertakes Aa preliminary, though not definitive, consideration of the [legal] framework@
applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Ritterbush need
not demonstrate his appeal will succeed to be entitled to a COA, he must Aprove
something more than the absence of frivolity or the existence of mere good faith.@ Id.
(quotations omitted). As a further overlay on this standard, we review for abuse of
discretion the district court=s decision that Ritterbush is not entitled to have the limitations
period set out in ' 2244(d)(1) equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141
(10th Cir. 2003).
Having undertaken a review of Ritterbush=s appellate filings, the district court=s
order of dismissal, and the entire record before this court pursuant to the framework set
out by the Supreme Court in Miller-El and Slack, we conclude Ritterbush is not entitled
to a COA. The district court=s resolution of Ritterbush=s ' 2254 motion is not deserving
of further proceedings or subject to a different resolution on appeal. In so concluding,
there is no need for this court to repeat the cogent and convincing analysis set out in the
district court=s order. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017) (holding that the
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process of resolving whether a petitioner is entitled to a COA should not devolve into a
determination of the merits). Accordingly, this court DENIES Ritterbush=s request for a
COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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