Wallin v. Estep ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 2, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
OLOYEA D. WALLIN,
Petitioner-Appellant,
v.
No. 11-1129
(D.C. No. 1:10-CV-00598-ZLW)
KEVIN R. ESTEP, and THE
(D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER GRANTING PANEL REHEARING
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
This matter is before the court on Mr. Wallin’s “Petition for Panel
Rehearing and Petition for Rehearing En Banc.”
Mr. Wallin’s petition for panel rehearing is granted in part. We have
determined that our order dated August 23, 2011 should be amended. A copy of
that amended order is attached. The Clerk of the Court is directed to file the
amendment forthwith.
The petition for rehearing en banc was circulated to all the active judges of
the court. No active judge or member of the panel called for a poll. Accordingly,
the request for rehearing en banc is denied.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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FILED
United States Court of Appeals
Tenth Circuit
August 23, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
OLOYEA D. WALLIN,
Petitioner-Appellant,
v.
No. 11-1129
KEVIN R. ESTEP, and THE
(D.C. No. 1:10-CV-00598-ZLW)
ATTORNEY GENERAL OF THE
(D. Colo.)
STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
In 2001, a Colorado state court convicted Oloyea D. Wallin of felony
menacing. In 2010, Mr. Wallin filed a petition in federal court seeking relief
from this conviction pursuant to 28 U.S.C. § 2254. The district court ruled that
the petition was barred by the one year limitations period set forth under 28
U.S.C. § 2244(d). Alternatively, the district court held, the petition was
*
This order is not binding precedent except under the doctrines of law of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.
procedurally barred by Mr. Wallin’s failure to exhaust certain state remedies
available to him.
Mr. Wallin did not immediately appeal this ruling. Instead, he filed a
motion seeking reconsideration of the court’s dismissal. Properly construing Mr.
Wallin’s motion as one under Fed. R. Civ. P. 60(b), the district court denied that
motion, explaining that Mr. Wallin “failed to assert any extraordinary
circumstances that would merit relief under Rule 60(b).” ROA at 321.
Mr. Wallin now seeks a certificate of appealability (“COA”) to appeal both
the dismissal of his § 2254 petition and the denial of his Rule 60(b) motion.
However, because Mr. Wallin failed to file timely a notice of appeal with regard
to his § 2254 petition and did not seek or receive any extension of time under
Fed. R. App. P. 4(a)(6), we are limited to consideration of the district court’s
denial of his Rule 60(b) motion. And even here, we may grant a COA only if Mr.
Wallin makes a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To do so, Mr. Wallin must demonstrate “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal quotation omitted).
This Mr. Wallin has not done. Viewing his pro se pleadings charitably,
they still fail to give us any reason to think that the district court should have
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granted a Rule 60(b) motion to reconsider its conclusion that his § 2254 petition
was procedurally defaulted. The record shows that, at the very least, Mr. Wallin
abandoned his original post-conviction claims of prosecutorial misconduct and
ineffective assistance of counsel as part of a post-conviction agreement with the
government and so defaulted these claims under state law. Mr. Wallin’s later
post-conviction claims were denied as successive by the Colorado courts. See
Colo. R. Crim. P. 35 (2003); Colo. R. Crim. P. 35(c)(3)(VII).
Mr. Wallin’s application for a COA and his motion for leave to proceed in
forma pauperis are denied and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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