United States v. McKenzie

FILED
United States Court of Appeals
Tenth Circuit
October 9, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-2081
v. (D.C. Nos. 1:15-CV-00130-JB-WPL
and 1:08-CR-01669-JB-1)
RICHARD ANTHONY McKENZIE, (D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
Defendant–Appellant Richard Anthony McKenzie, a federal inmate
appearing pro se, seeks a certificate of appealability (COA) to appeal from the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. The district court denied the motion as time-barred under
the one-year limitation period of § 2255(f). McKenzie v. United States, Nos. CIV
15-0130 JB/WPL, CR 08-1669 JB, 2015 WL 2226308 (D.N.M. April 30, 2015).
Because we determine that Mr. McKenzie has not shown “that 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,” we deny a COA and dismiss
the appeal. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mr. McKenzie was convicted of possession with intent to distribute 500 or
more grams of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and sentenced to 262
months’ imprisonment and four years’ supervised release. The judgment was
affirmed on direct appeal. United States v. McKenzie, 532 F. App’x 793, 797
(10th Cir. 2013). Mr. McKenzie submitted an untimely petition for rehearing
which the panel accepted for filing and denied on September 11, 2013. Thus, it
appears that Mr. McKenzie’s conviction became final at the latest on December
10, 2013, when the 90-day period for filing a petition for writ of certiorari
expired. See Clay v. United States, 537 U.S. 522, 525, 532 (2003). Mr.
McKenzie’s § 2255 motion was filed on February 13, 2015, well after the one-
year limitation period.
On appeal, Mr. McKenzie argues that the district court erred when it
rejected his grounds for equitable tolling: (1) he attempted to file his § 2255
motion while his direct appeal was pending, (2) he sought transcripts, and (3) he
was pursuing a state post-conviction matter which could affect his § 2255 motion
and was unaware that he could not delay the filing of his § 2255 motion. He
argues that he has shown the necessary diligence, and presumably the
extraordinary circumstance, for equitable tolling. See Holland v. Florida, 560
U.S. 631, 649 (2010); Lawrence v. Florida, 549 U.S. 327, 336 (2007); Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). We do not think that the district
-2-
court’s contrary conclusion is reasonably debatable—none of these circumstances
demonstrate the level of diligence, despite an extraordinary circumstance, that
would be necessary for equitable tolling. While counsel, a transcript, and more
information about possible grounds for a § 2255 motion could be helpful, they are
by no means required to file a timely § 2255 motion—Mr. McKenzie’s delay in
filing a timely § 2255 motion cannot be excused with equitable tolling. This is
true even if he was unaware of the consequences of that delay. Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000).
We DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-