                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      June 24, 2009
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT



 JERRY WATSON,

              Petitioner-Appellant,                     No. 09-1006
 v.                                                  District of Colorado
 KEVIN MILYARD; THE                           (D.C. No. 1:08-CV-01363-ZLW)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents-Appellees.



          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Jerry Watson, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Watson has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On September 11, 1994, Mr. Watson was charged with three counts of

second degree kidnapping; three counts of aggravated robbery — deadly weapon;

and one count each of conspiracy to commit second degree kidnapping, theft, and

a crime of violence sentence enhancer. Doc. 11 at 1. On April 15, 1996, he pled

guilty to one count of aggravated robbery — deadly weapon, in exchange for the

dismissal of the remaining charges. Id. at 1–2. He was sentenced to a term of

sixteen years, and the sentence was ordered to run consecutively to a sentence he

received for a case in Missouri. Id. at 2.

                                    Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal


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quotation marks omitted). When a district court denies a habeas petition on

procedural grounds, a COA should issue only if reasonable jurists would find it

debatable both that “the petition states a valid claim of the denial of a

constitutional right” and “the district court was correct in its procedural ruling.”

Id.

        The issue in this case is whether Mr. Watson is barred by the one-year

statute of limitations from filing his appeal, in light of the fact that he was

incarcerated for a considerable period of time in facilities outside Colorado and

thus may not have had access to legal materials necessary to the preparation of his

case.

        In a related case (08-1412), Mr. Watson contended that time he spent

incarcerated in Missouri should not count against the statute of limitations. The

district court in that case did not ultimately need to decide whether he was legally

entitled to tolling because, even deducting the time he spent in Missouri, Mr.

Watson still did not satisfy the limitations period. Watson v. Milyard, No. 08-cv-

01223-BNB, 2008 WL 4425240, at *4 (D. Colo. Sept. 29, 2008). This Court

affirmed. Watson v. Milyard, No. 08-1412, 314 Fed. App’x 149, 150 (10th Cir.

2009). Specifically, the district court stated that “[c]onsidering that Mr. Watson

may not have had access to [Colorado] legal materials until he was actually


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placed” in a Colorado facility, it would not count the time he spent in Missouri as

applying toward the statue of limitations, but even granting him this additional

time, Mr. Watson’s appeal was still barred by the one-year limitation period in §

2254(d). 1 Watson, 2008 WL 4425240, at *4. Any conclusion that Mr. Watson

was entitled to toll the period he was incarcerated in Missouri was therefore

obiter dictum; in effect, the district court held that, even if the time he spent in

Missouri were tolled, he still would not prevail.

      Here Mr. Watson makes a similar argument. In this case, however, it was

necessary for the district court (and therefore is necessary for us) to determine

whether the time he was incarcerated in Missouri should be counted toward the

one-year statute of limitations. If that time is excluded in this case, then Mr.

Watson filed within 359 days of his final order of conviction.

      Equitable tolling of the statute of limitations in habeas is permitted only in

“rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000). The paradigm case of an exceptional circumstance is when a person is


      1
       In our earlier opinion, we also quoted the district court as saying that “169 days
were not tolled” for the purposes of Mr. Watson’s appeal. Watson, 314 Fed. App’x at
150. This was technically correct, but incomplete—and in context, potentially
misleading. The district court found that the total time not tolled for Mr. Watson was
489 days, which included the 169 days immediately after Mr. Watson returned to
Colorado. Because 489 days puts the time not tolled to over one year, Mr. Watson’s
appeal was time-barred.

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actually innocent. Id. Mr. Watson does not contend that he is actually innocent.

But we have also held that equitable tolling is permitted “when an adversary’s

conduct—or other uncontrollable circumstances—prevents a prisoner from timely

filing.” Id. That is the essence of Mr. Watson’s argument.

      The district court rejected Mr. Watson’s contention in this case, finding

that his “bare allegations of the denial of access to legal resources” was

insufficient to support a claim of equitable tolling. Watson v. Milyard, No. 08-cv-

01363-BNB, 2008 WL 5210257, at *4 (D. Colo. Dec. 9, 2008). As the district

court noted, equitable tolling is appropriate only if the inmate has pursued his

claims diligently, Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), and has

alleged “with specificity” the steps he took in diligently pursuing his federal

claims, Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008). The district court

concluded that Mr. Watson had not met his burden of giving a detailed showing

of the steps he took in “diligently pursu[ing]” his claims. Watson, 2008 WL

5210257, at *3. According to the district court, Mr. Watson’s statement that he

had “pursued every available avenue at trying to get the materials needed” was a

bare allegation that was “insufficient, when standing alone, to justify equitable

tolling.” Id. at *4. We agree. Although it is theoretically possible that lack of

access to Colorado legal materials could, under certain circumstances, preclude a


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prisoner from filing his habeas petition, it is not always so. We do not know

whether Mr. Watson sought and was denied Colorado materials, we do not know

what legal materials might have been relevant to his claims, and we do not know

what efforts he made while in Missouri to prepare and present his case. It is the

obligation of the prisoner seeking equitable tolling to supply this information.

      In his appellate brief, Mr. Watson primarily complains that the district

court treated his two cases inconsistently, tolling the days spent in Missouri in

No. 08-1412 but not here. He contends that this could be a violation of his right

to equal protection because “although the circumstances [were] equal” in his two

appeals, the rulings were not. This is not a substantial claim showing of the

denial of a constitutional right. In No. 08-1412, the district court did not need to

decide whether Mr. Watson’s incarceration in Missouri required equitable tolling

because, even if that time was excluded, he still failed to file his habeas petition

on time. There is no inconsistency in deciding one case on that ground and then

confronting the merits of the equitable tolling question in the other case, where it

would actually affect the outcome.

      Mr. Watson also argues that the district court was incorrect in saying that

his allegations were not sufficiently specific. He says he “wrote both courts in

Colorado that sentenced him . . . but neither Denver, nor Arapahoe County


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responded to these letters the appellant wrote asking for directions, clearly

denying him access.” Petr.’s Opening Br. at 2. Mr. Watson cites to a brief in the

proceedings below in which he said that in Missouri, he “tried to reach out to the

Colorado judicial systems that sentenced him, but they denied his letters as

motions, and gave him no help or direction on what he could do about his 35(c)

post conviction relief issues.” Doc. 8-2 at 2, 7. Mr. Watson did this, he says,

“because he didn’t know what else to do but write the courts to try to get

something done.” Doc. 8-2 at 8. He also states, in the brief before us, that he

“was denied access on how to file a proper habeas corpus in the United States

district court.” Petr’s Opening Br. at App’x C.

      Most of this information comes to us in the form of assertions in his

appellate brief rather than evidence in the district court record. It appears, from

the record we have, that Mr. Watson’s attorneys made some motions in 1996, that

Mr. Watson wrote a letter to the court in 1997, and that Mr. Watson filed a pro se

motion in 2002. Doc. 8 at 7. Although we will presume all these things

happened, we have very little detail about what was in the letter or letters written

by Mr. Watson requesting help or direction from the courts (again, they are not in

the record). More importantly, this is the extent of his efforts during the nine

years he was incarcerated in Missouri. So we agree with the district court that


                                          -7-
Mr. Watson’s claim failed to satisfy his obligation to show, “with specificity,”

that he exercised due diligence. We do not believe that any reasonable jurist

would find that this is one of those rare and extraordinary circumstances where

tolling is required.

                                    Conclusion

      Accordingly, we DENY Mr. Watson’s request for a COA and DISMISS

this appeal. Petitioner’s motion to proceed in forma pauperis is GRANTED.




                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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