United States v. Sheridan , 561 F. App'x 689 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
April 8, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-2204
(D.C. Nos. 2:13-CV-00225-WJ-GBW
JOHN FRANK SHERIDAN, and 1:10-CR-01956-WJ-1)
(D. of N.M.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
John Frank Sheridan, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s decision denying
his habeas petition under 28 U.S.C. § 2255 as untimely. Exercising jurisdiction
under 28 U.S.C. §§ 1291 and 2253, we DENY a COA and DISMISS the appeal.
We do, however, grant Sheridan’s request to proceed in forma pauperis (IFP).
*
This order is not binding precedent except under the doctrines of law of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.
I. Background
In February 2011, Sheridan pleaded guilty to federal drug charges and was
sentenced to 100 months of imprisonment. He did not directly appeal, and the
one-year limitations period to file a habeas corpus petition came and went. But in
2013, Sheridan sought habeas relief under 28 U.S.C. § 2255, alleging several
constitutional claims.
After Sheridan failed to directly respond to two orders to show cause why
his petition should not be dismissed as untimely, a magistrate judge recommended
that the district court dismiss his action with prejudice. Soon after the magistrate
judge’s recommendation issued, Sheridan filed a response to the second show
cause order and later filed objections to the magistrate judge’s recommendation.
To address the untimeliness of his petition, Sheridan set forth several reasons for
equitable and statutory tolling of the limitations period. Finding these grounds
for tolling unavailing, the district court adopted the recommendation of the
magistrate judge and dismissed the habeas petition as time barred.
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), “[t]he
issuance of a COA is a jurisdictional prerequisite to an appeal” from the district
court’s denial of habeas relief. United States v. Gonzalez, 596 F.3d 1228, 1241
(10th Cir. 2010). When, as here, the district court denies the habeas petition on
procedural grounds, a COA can issue only when the prisoner demonstrates that
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“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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Pursuant to § 2255, a federal prisoner has one year from the latest of
several dates to file a motion attacking his sentence. In most instances, the
applicable date is the day on which the conviction became final. 28 U.S.C.
§ 2255(f)(1); see also Clay v. United States, 537 U.S. 522, 524 (2003). Since
Sheridan’s conviction was finalized as of February 2011, his habeas petition was
untimely under this subsection.
To overcome this deficiency, Sheridan attempts to avail himself of the
other subsections of § 2255(f), which provide means to statutorily toll the
limitations period. But none of these grounds for statutory tolling is available to
Sheridan based on the facts of his conviction and sentence. Nor can Sheridan
benefit from equitable tolling because, as the district court found, he has not
demonstrated either extraordinary circumstances that prevented timely filing or a
diligent pursuit of his rights. See Lawrence v. Florida, 549 U.S. 327, 336 (2007).
A. Statutory Tolling
Contrary to Sheridan’s assertions, § 2255(f)(3) is inapplicable to the
present case. That subsection effectively starts the limitations period under
§ 2255 from the date the Supreme Court recognizes (and makes retroactively
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applicable) a new constitutional right. Sheridan claims that two Supreme Court
cases from 2012—Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper,
132 S. Ct. 1376 (2012)—established a new constitutional right to effective
assistance of counsel during plea bargaining. To be sure, that right is an
important one, but it existed well before the Supreme Court reiterated its
constitutional gravity in Frye and Lafler. In re Graham, 714 F.3d 1181, 1183
(10th Cir. 2013) (“Frye and Lafler . . . do not establish a new rule of
constitutional law.”). Because neither Frye nor Lafler establishes a newly
recognized right in the first instance, we need not address whether the rules from
those cases have been made retroactively applicable.
Sheridan also tries to make use of § 2255(f)(2), which extends the
limitations period to one year from the removal of a government-created
impediment in violation of the Constitution or a United States law that prevented
the prisoner from timely filing. Following Sheridan’s line of reasoning under this
subsection is challenging, but, in an effort to construe his filing liberally, see Hall
v. Bellmon, 935 F.2d 1106 (1991), we endeavor to consider its merits. Sheridan’s
argument stems from a news article released in August 2013, which purportedly
exposed a clandestine DEA operation that violated the rights of criminal
defendants by shielding evidence from pre-trial discovery. According to
Sheridan, this alleged “egregious pattern and practice of unconstitutional
conduct” resulted in his arrest. See Aplt. Br. at 15. Moreover, Sheridan alleges
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that he was aware of this unconstitutional practice prior to his plea and sought to
challenge it through a suppression hearing; however, his counsel “botched” it. Id.
at 16.
Unfortunately for Sheridan, he is unable to explain how the alleged
unconstitutional practice prohibited him from accessing the court to “attack his
sentence or to challenge the conditions of his confinement,” which is required for
statutory tolling under § 2255(f)(2). Akins v. United States, 204 F.3d 1086, 1090
(11th Cir. 2000). In other words, the DEA’s practices did not impede him from
filing his habeas motion. Moreover, Sheridan’s claim that he was put on notice of
his constitutional claim when the news article was released in August 2013 is
belied by his brief, which asserts that he intended to raise this very issue during a
suppression hearing back in 2011. Equipped with knowledge of his alleged
constitutional claim by at least the time of his plea, Sheridan had no excuse for
delaying the filing of his habeas motion for almost two years. For these reasons,
the district court’s procedural ruling on the inapplicability of statutory tolling
cannot be reasonably questioned.
B. Equitable Tolling
“To be entitled to equitable tolling, [appellant] 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.” Lawrence, 549 U.S. at 336(internal citation and quotation marks omitted). Equitable tolling is only
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appropriate in “rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000). Consideration of the second prong—extraordinary
circumstances—is sufficient to dispose of Sheridan’s claim. Indeed, we agree
with the thorough analysis of the district court, which demonstrates that
Sheridan’s allegations for deliberate misconduct and concealment by both his
counsel and the prosecution are completely inconsistent with the record. Quite
simply, there is no factual basis for a claim of “extraordinary circumstances” that
would warrant equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008) (finding that the inmate must meet his burden by showing specific facts
that demonstrate “extraordinary circumstances”). No reasonable jurist could
debate the district court’s correct conclusion regarding the absence of facts
necessary to establish a claim for equitable tolling.
III. Conclusion
We GRANT leave to proceed IFP, but DENY a COA and DISMISS
Sheridan’s appeal.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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