United States v. Gardner

FILED
United States Court of Appeals
Tenth Circuit
March 21, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-4196
v. (D.C. Nos. 2:16-CV-00022-TC and
2:13-CR-00016-TC-1)
BRYAN JAMES GARDNER, (D. Utah)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Defendant-Appellant Bryan James Gardner, a federal inmate appearing pro
se, seeks a certificate of appealability (“COA”) to appeal from the district court’s
denial of his motion to vacate, set aside, or correct his sentence. 28 U.S.C.
§ 2255. To obtain a COA, Mr. Gardner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district court
concluded that Mr. Gardner’s motion was time-barred and otherwise failed on the
merits. Gardner v. United States, Nos. 2:16-CV-22 TC, 2:13-CR-16 TC, 2016
WL 5374099, *1 (D. Utah Sept. 26, 2016).
The district court denied the motion on a procedural ground, thus Mr.
Gardner must show that “jurists of reason would find it debatable whether the
[motion] 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). Because we
determine the district court’s time-bar decision is not reasonably debatable, we
deny a COA and dismiss the appeal.
In February 2013, Mr. Gardner pled guilty to possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced to ten
years’ incarceration, followed by lifetime supervision. Nearly two-and-a-half
years later, Mr. Garner filed his § 2255 motion based on three grounds. The
district court denied Mr. Gardner’s petition as untimely and declined to apply
equitable tolling.
On appeal Mr. Gardner argues the merits of his § 2255 motion, rather than
the timeliness and equitable tolling issues. Aplt. Br. at 1–2. Although we are
mindful that Mr. Gardner is pro se, the failure to address these issues constitutes
waiver. E.g., Horne v. McCall, 171 F. App’x 246, 247 n.1 (10th Cir. 2006)
(citing State Farm Fire & Cas. Co. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.
1994)).
Regardless, the district court’s resolution of these issues is not reasonably
debatable. Mr. Gardner had one year from the date on which the judgment of
conviction became final to file his § 2255 petition. 28 U.S.C. § 2255(f)(1).
Judgment was entered in Mr. Gardner’s criminal case on August 8, 2013. 3 Rawle 37.
-2-
Because he did not file a direct appeal, that judgment became final on August 22,
2013, see Fed. R. App. P. 4(b)(1)(A)(i); United States v. Prows, 448 F.3d 1223,
1227–28 (10th Cir. 2006), and the one-year limitations period expired on August
22, 2014. Mr. Gardner’s § 2255 motion was filed January 7, 2016, 1 Rawle 1, so it
was untimely, absent equitable tolling. Equitable tolling, however, “is only
available when an inmate diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Having
reviewed Mr. Gardner’s brief, the district court’s decision, and the record on
appeal, we find no extraordinary circumstances that warrant equitable tolling.
See id. (“[I]t is well established that ‘ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing.’” (quoting
Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)).
Accordingly, we DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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