                                                          FILED
                                              United States Court of Appeals
                  UNITED STATES COURT OF APPEALS      Tenth Circuit

                           FOR THE TENTH CIRCUIT              January 5, 2018

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                   No. 17-8048
                                         (D.C. Nos. 2:16-CV-00102-NDF and
WILLIS A. CENTER,                              2:14-CR-00112-NDF-1)
                                                      (D. Wyo.)
       Defendant - Appellant.



                                  ORDER


Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.


      This appeal stems from a car search. In the search, authorities found

methamphetamine and a large amount of cash, which ultimately led to the

passenger’s conviction for drug crimes. The passenger, Mr. Willis Center,

moved for vacatur of his sentence under 28 U.S.C. § 2255, and the district

court denied relief.

      Mr. Center wants to appeal and avoid prepayment of the filing fee.

He can pursue the appeal only if we grant a certificate of appealability. 28

U.S.C. § 2253(c)(1)(B). And he can avoid prepayment of the filing fee only

by obtaining leave to proceed in forma pauperis. We deny the certificate of
appealability and dismiss the appeal. But we grant leave to proceed in

forma pauperis.

I.    Mr. Center’s Claims

      In his original motion, Mr. Center alleged that his sentence had been

improperly enhanced under sentencing-guideline provisions that were

unconstitutionally vague. And in a motion for leave to amend, Mr. Center

sought to add claims involving the constitutionality of the car search and

ineffective assistance of counsel. The district court rejected the original

claim and denied leave to amend.

      In reviewing these challenges, we consider whether the district

court’s ruling is subject to reasonable debate. If not, we must deny the

request for a certificate of appealability. Slack v. McDaniel, 529 U.S. 473,

484 (2000).

II.   The Claim in the Original Motion

      The claim in the original motion, based on vagueness of the pertinent

guideline provision, is foreclosed by Beckles v. United States, 137 S. Ct.

886 (2017). There the Supreme Court held that the sentencing guidelines

are not subject to the void-for-vagueness doctrine. Beckles, 137 S. Ct. at

897. Thus, any reasonable jurist would reject Mr. Center’s vagueness

challenge to the sentence.




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III.   Mr. Center’s Motion for Leave to Amend

       Mr. Center also sought leave to add claims involving the car search

and ineffective assistance of counsel. These claims would have been

untimely.

       Claims under § 2255 are subject to a one-year period of limitations.

28 U.S.C. § 2255(f). The district court concluded that the claims would

ordinarily be time-barred, and Mr. Center does not argue to the contrary.

The conviction became final in March 2015, and he waited until May 2016

to file the habeas petition. Thus, the habeas petition is untimely.

       Mr.   Center   urges    equitable   tolling   based    on   extraordinary

circumstances involving obstructive conduct by prison officials and

counselors. Equitable tolling is rarely appropriate and applies only when

the claimants are unable to timely file documents based on impediments

outside of the claimants’ control. See Yang v. Archuleta, 525 F.3d 925, 928

(10th Cir. 2008) (“‘Equitable tolling is a rare remedy to be applied in

unusual circumstances . . . .’” (quoting Wallace v. Kato, 549 U.S. 384, 396

(2007))); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding

that equitable tolling requires extraordinary circumstances beyond the

claimant’s   control).   But   Mr.   Center    has   not     identified   external

impediments preventing him from timely filing the additional claims. Thus,

the district court’s denial of leave to amend is not subject to reasonable

debate.

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                                       * * *

       Because the district court’s rulings are not reasonably debatable, we

decline to issue a certificate of appealability. And in the absence of this

certificate, we dismiss the appeal.

IV.    Leave to Proceed in Forma Pauperis

       Though we dismiss the appeal, we must address Mr. Center’s motion

for leave to proceed in forma pauperis. See Clark v. Oklahoma, 468 F.3d

711, 715 (10th Cir. 2006) (stating that a petitioner remains obligated to

pay the filing fee after denial of a certificate of appealability). To obtain

leave to proceed in forma pauperis, Mr. Center must show that he

            lacks the money to prepay the filing fee and

            brings the appeal in good faith.

28 U.S.C. § 1915(a)(1), (a)(3).

       He satisfies both requirements. He has no assets and owes the prison

over $18,000. And we have no reason to question Mr. Center’s good faith

even though his underlying appeal points are not reasonably debatable. See

Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (per curiam) (stating

that   the   petitioner’s   burden   for   a   certificate   of   appealability   “is

considerably higher” than the burden of “good faith” for leave to proceed

in forma pauperis). As a result, we grant leave to proceed in forma

pauperis. See Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)

(granting leave to proceed in forma pauperis notwithstanding the denial of
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a certificate of appealability); Yang v. Archuleta, 525 F.3d 925, 931 & n.10

(10th Cir. 2008) (same).

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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