                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 18, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 09-6155
                                                     (W.D. Oklahoma)
       v.
                                             (D.C. Nos. 5:03-CR-00203-D-1 and
                                                    5:08-CV-00044-D)
DAVID MARLAND LEONARD, JR.,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      This matter is before the court on David Leonard’s pro se request for a

certificate of appealability (“COA”). Leonard seeks a COA so he can appeal the

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2255 motion.

See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a

final order denying a § 2255 motion unless the movant first obtains a COA); id.

§ 2255(f)(1) (setting out a one-year statute of limitations on § 2255 motions

running from the date on which the conviction became final). Because Leonard

has not “made a substantial showing of the denial of a constitutional right,” id.

§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
      Following a jury trial in district court, Leonard was convicted of two counts

of involuntary manslaughter and one count of assault resulting in serious bodily

injury. This court affirmed Leonard’s convictions on direct appeal. United States

v. Leonard, 439 F.3d 648 (10th Cir. 2006). Leonard’s convictions became final

when the Supreme Court denied certiorari on June 26, 2006. See Leonard v.

United States, 548 U.S. 917 (2006) (denying Leonard’s petition for a writ of

certiorari); United States v. Gabaldon, 522 F.3d 1121, 1123 (10th Cir. 2008)

(noting movant’s convictions became final upon the Supreme Court’s denial of

certiorari). Leonard filed the instant § 2255 motion on January 14, 2008, more

than six months beyond the one-year limitations period set out in § 2255(f)(1).

      Before the district court, Leonard recognized his § 2255 motion was

untimely, but asserted he was entitled to equitable tolling because the attorney he

hired to represent him “never filed anything.” In a comprehensive order, the

district court concluded the allegations set out in Leonard’s filings demonstrated,

at most, simple negligence on the part of his retained counsel. Relying on

binding precedent from this court, the district court further concluded that simple

attorney negligence was insufficient to justify equitable tolling. Fleming v.

Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007) (holding that although “egregious

attorney misconduct may constitute extraordinary circumstances that justify

equitable tolling,” “attorney negligence is not extraordinary and clients, even if

incarcerated, must vigilantly oversee, and ultimately bear responsibility for, their

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attorneys’ actions or failures” (quotation omitted)). Thus, the district court

denied Leonard’s request for equitable tolling and dismissed his § 2255 motion as

untimely.

      The granting of a COA is a jurisdictional prerequisite to Leonard’s appeal

from the denial of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Leonard must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “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.” Id. (quotations omitted). When a district

court dismisses a § 2255 motion on procedural grounds, a movant is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether

he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 474, 484-85

(2000). In evaluating whether Leonard has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

Although Leonard need not demonstrate his appeal will succeed to be entitled to a

COA, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. As a further overlay on this standard, we

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review for abuse of discretion the district court’s decision that Leonard is not

entitled to have the limitations period in § 2255(f) equitably tolled. See Burger v.

Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

      Having undertaken a review of Leonard’s appellate filings, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Leonard is not entitled to

a COA. The district court’s resolution of Leonard’s § 2255 motion is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. In particular, the district court did not

abuse its discretion in determining Leonard failed to demonstrate the type of

extraordinary circumstances that would justify equitably tolling the limitations

period set out in § 2255. Accordingly, this court DENIES Leonard’s request for

a COA and DISMISSES this appeal. Leonard’s request to proceed on appeal in

forma pauperis is GRANTED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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