United States v. Zaler , 537 F. App'x 808 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
October 31, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-1343
(D.C. Nos. 1:12-CV-02925-RM and
ARNOLD ZALER, 1:08-CR-00089-RM-1)
(D. Colo.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
After Arnold Zaler pleaded guilty to one count of mail fraud, one count of
wire fraud, and two counts of bank fraud, the district court sentenced him to 15
years for each offense, the sentences to run concurrently. Mr. Zaler first
challenged his sentence on direct appeal. United States v. Zaler, 405 F. App’x
301 (10th Cir. 2010). After that effort proved unsuccessful, Mr. Zaler sought to
challenge his sentence again, this time by means of a motion under 28 U.S.C.
§ 2255. In his § 2255 motion Mr. Zaler alleged that the sentencing judge bore
*
This order is not binding precedent except under the doctrines of law of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.
biases against him, so the sentencing judge recused and a new judge was
appointed to the case. Ultimately, the new judge dismissed Mr. Zaler’s § 2255
motion as untimely and declined to issue a certificate of appealability.
Mr. Zaler now renews his request for a certificate of appealability. By
statute, however, we may issue that certificate only if Mr. Zaler first makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). And he can do that only by showing that reasonable jurists could
debate (or agree on) a different resolution of the habeas petition or the merit of
further proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
That much we are not able to say in this case. By statute, Mr. Zaler’s
§ 2255 motion was due within one year after his conviction became final. See 28
U.S.C. § 2255(f). Mr. Zaler’s conviction became final in March 2011, when his
time to file a petition for a writ of certiorari to the Supreme Court expired. Yet
Mr. Zaler did not file his § 2255 motion until November 2012, more than 19
months later. Plainly, his motion was untimely.
To be sure, a litigant may seek to invoke equitable tolling doctrine to delay
the passing of the statutory limitations period. But to do so successfully, the
litigant generally “bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way” preventing timely filing. Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005).
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Mr. Zaler has not borne either burden in this case. As the newly appointed
district judge noted when ruling on Mr. Zaler’s § 2255 motion, the putative
evidence of sentencing bias Mr. Zaler cites was known to Mr. Zaler by the time
his conviction became final. Yet Mr. Zaler does not identify any “specific[] . . .
steps he took” to pursue those known claims during the one-year limitations
period. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Neither does he
identify any extraordinary circumstances that prevented him from filing within
the prescribed period. In these circumstances, we are unable to find any room to
debate the district court’s assessment that Mr. Zaler cannot successfully invoke
equitable tolling.
The application for a COA is denied and the appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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