Crowder v. Martin ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 10, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
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SHARAY TYREE CROWDER,
Petitioner - Appellant, No. 20-6053
v. (D.C. No. 5:19-CV-00747-HE)
(W.D. Okla.)
JIMMY MARTIN, Warden,
Respondent - Appellee.
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ORDER
______________________________________________
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
______________________________________________
This appeal grew out of state court convictions for possessing child
pornography and sexually abusing children. The petitioner (Mr. Sharay
Crowder) sought habeas relief, and the district court dismissed the petition
based on timeliness. See 28 U.S.C. § 2244(d). Mr. Crowder wants to appeal
and seeks leave to proceed in forma pauperis.
Mr. Crowder can appeal only if he obtains a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate is available only
upon a showing that the district court’s ruling on timeliness was at least
reasonably debatable. Laurson v. Leyba, 507 F.3d 1230, 1231–32 (10th Cir.
2007).
In seeking a certificate of appealability, Mr. Crowder contends that
the availability of equitable tolling is reasonably debatable. Equitable
tolling is warranted only if (1) a petitioner has diligently pursued his rights
and (2) extraordinary circumstances prevented timely filing. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). If we were to grant a
certificate, we would review the district court’s ruling only for an abuse of
discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Mr. Crowder makes three arguments for equitable tolling:
1. He couldn’t seek post-conviction relief in state court without a
trial transcript.
2. He couldn’t obtain access to a trial transcript because he
couldn’t afford the court reporter’s fee.
3. The state court misled him with respect to the need for a trial
transcript.
For these arguments, Mr. Crowder points to
 a state-court opinion requiring applications for post-conviction
relief to contain specific factual allegations and
 the instructions on the state court’s form for post-conviction
relief to “[a]ttach supporting documentation.”
Appellant’s Opening Br. at 15. We reject Mr. Crowder’s arguments for
equitable tolling.
Mr. Crowder could have sought federal habeas relief without a trial
transcript. He contends that he needed a transcript to seek post-conviction
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relief in state court, but he could have sought federal habeas relief without
applying in state court for post-conviction relief.
Even if we credit his desire to pursue post-conviction relief in state
court, he was still dilatory. He didn’t request a trial transcript until
roughly seven months after his conviction had become final. When the
request was denied, Mr. Crowder sought mandamus relief in state court.
When mandamus was denied, Mr. Crowder waited another year before
filing a federal habeas petition.
Even if he were entitled to equitable tolling, he’d still waited roughly
seven months without taking any action to obtain a transcript. So even with
equitable tolling, the federal habeas petition would have been out-of-time
by roughly seven months. We thus decline to issue a certificate of
appealability. Given the absence of a certificate, we dismiss this matter.
Though we dismiss the matter, Mr. Crowder cannot afford to prepay
the filing fee. So we grant his motion for leave to proceed in forma
pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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