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

                                   TENTH CIRCUIT                           February 4, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 ANTHONY ALLEN MACK,

           Petitioner-Appellant,

 v.

 JAMES FALK, Warden, Sterling
                                                             No. 12-1303
 Correctional Facility; COLORADO
                                                    (D.C. No. 1:12-CV-00956-LTB)
 DEPARTMENT OF CORRECTIONS;
                                                               (D. Colo.)
 THE ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

           Respondent-Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, EBEL and MURPHY, Circuit Judges.


       Petitioner-Appellant Anthony Mack, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”), see 28 U.S.C. § 2253(c), in order to appeal

the denial of his 28 U.S.C. § 2254 habeas petition as time-barred. He also requests leave

to proceed in forma pauperis (“IFP”). We GRANT Mack’s IFP status but, after careful

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
consideration of the record and Mack’s arguments, we DENY Mack’s request for a COA,

because we conclude that reasonable jurists would not find it debatable whether the

district court was correct in its procedural ruling. Accordingly, we DISMISS this appeal.

                                 STANDARD FOR COA

       This Court lacks jurisdiction to consider the merits of a habeas appeal unless we

grant the applicant a COA. 28 U.S.C. § 2253(c)(1)(A). We issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). Where, as here, the district court dismissed the petition on procedural

grounds, we will grant a COA if the petitioner can show “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       The district court concluded that Mack’s petition was time-barred because (1) it

was filed well after the expiration of the one-year limitation period imposed by the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”); (2) no state post-conviction

motions statutorily tolled the one-year limitation period; and (3) Mack was not entitled to

equitable tolling. Accordingly, the district court dismissed Mack’s petition as untimely

and ordered that no COA should issue. Mack then filed a motion for reconsideration,

which the district court denied, and Mack filed his Combined Opening Brief and

Application for a COA with this Court.


                                              2
                                      DISCUSSION

       Pursuant to 28 U.S.C. § 2244(d), AEDPA’s one-year limitations period generally

runs from “the conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1). In this case, a Colorado jury convicted Mack in 1999

of second degree murder, for which he received a sentence of 40 years’ imprisonment.

The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied

Mack’s petition for certiorari review on May 20, 2002. After the Colorado Supreme

Court denied his petition for certiorari, Mack did not seek certiorari from the United

States Supreme Court, so his “time for seeking [direct] review” expired on August 19,

2003. See Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000).

       Although the “time during which a properly filed application for State post-

conviction or other collateral review” is pending tolls AEDPA’s one-year limitations

period, 28 U.S.C. § 2244(d)(2), the only pleading Mack filed within the following year

was a letter requesting transcripts. As the district court correctly concluded, Mack’s

April 2003 request for transcripts “did not constitute an application for ‘post-conviction

or other collateral review with respect to the pertinent judgment or claim,’ and, therefore,

did not toll the limitations period.” Dist. Ct. Op. at 6 (citing May v. Workman, 339 F.3d

1236, 1237 (10th Cir. 2003)). Mack waited to file his first petition for state post-

conviction relief, pursuant to Colo. Crim. P. Rule 35(c), until December 2005, over two


                                              3
years after the AEDPA limitations period expired. Thus, Mack’s federal habeas petition,

which he filed April 10, 2012, is time-barred unless equitable tolling applies.

       “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)

(internal quotation marks omitted). The petitioner “bears a strong burden to show

specific facts to support his claim of extraordinary circumstances and due diligence.”

Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). “Ultimately, . . . we will vacate

the District Court’s determination that equitable tolling is inapplicable only if reasonable

jurists could debate whether the court’s refusal to toll the statute of limitations was an

abuse of discretion.” Fleming v. Evans, 481 F.3d 1249, 1254-55 (10th Cir. 2007).

       Mack asserts that he is entitled to equitable tolling because his attorney misled him

into believing the attorney was pursuing post-conviction relief on Mack’s behalf. “[A]n

attorney’s negligence, for example, miscalculating a filing deadline, does not provide a

basis for tolling a statutory time limit.” Maples v. Thomas, 132 S.Ct. 912, 923 (2012).

However, the Supreme Court has recognized that an attorney’s conduct can constitute an

“extraordinary circumstance” where he “essentially abandon[s] his client.” Id. In that

case, “a client [cannot] be faulted for failing to act on his own behalf when he lacks

reason to believe his attorneys of record, in fact, are not representing him.” Id.

       Mack argued before the district court that his post-conviction counsel “did not act

with mere negligence,” Doc. 15 at 9, but rather that his counsel “deceived” and
                                              4
“abandoned” him. Doc. 22 at 6; Doc. 15 at 9. In support of that contention, Mack

recounted that on or before September 5, 2002—well before the expiration of AEDPA’s

one-year limitations period—Mack, through family members, paid a $10,000 retainer to

attorney Gregory Graf. The contract between the parties contemplated that Graf would

“represent [Mack] in connection with his post-conviction defense and a federal writ of

habeas corpus pursuant to 28 U.S.C. § 2254.” Aplt. Br. App’x A. However, Graf failed

to file timely a federal or state habeas petition on Mack’s behalf. Mack complained that

Graf “deceived him into believing that he was actively pursuing Mr. Mack’s legal

remedies when, in fact, . . . [Graf] was in the midst of juggling his military schedule,

while still receiving payment . . . .” Doc. 15 at 9. Mack stated that he did not know “for

certain[]” when Graf was deployed to the Middle East, but a June 2006 order from the

state trial court indicates that Graf admitted that he had traveled to the Middle East four

times “over the [preceding] two years.” Aplt. App. at 33.

       The district court acknowledged that an attorney’s misconduct may sometimes

qualify as an “extraordinary circumstance” that justifies equitable tolling. See Holland,

130 S.Ct. at 2562-63. However, the court determined that “the facts set forth by Mr.

Mack in his Reply are insufficient to show that his attorney’s unprofessional conduct

constituted an extraordinary circumstance warranting equitable tolling . . . .” Dist. Ct.

Op. at 8. Specifically, the court noted that Mack did not “explain with particularity when

retained counsel was deployed to the Middle East and how that prevented him from filing

a state post-conviction motion . . . .” Id. Furthermore, the court found that Mack “d[id]
                                              5
not state any facts to show that he acted diligently in pursuing his state post-conviction

remedies.” Id.

       Although the district court did not mention it, a recent Supreme Court decision,

Maples v. Thomas, is instructive. 132 S.Ct. 912 (2012). In Maples, the Court recognized

that where a petitioner has been abandoned by his attorney, he cannot “be faulted for

failing to act on his own behalf when he lacks reason to believe his attorneys of record, in

fact, are not representing him.” 132 S.Ct. at 924. Here, Mack alleged that Graf

misrepresented to him that he was “in the mi[d]st of preparing and filing an application

for post-conviction relief,” and that Graf “abandoned him” when he traveled to the

Middle East. Doc. 15 at 9. Graf’s failure to file a single motion on Mack’s behalf for

more than three years provides some support for Mack’s allegation.

       However, Maples does not stand for the proposition that a petitioner’s initial

“lack[ of] reason to believe his attorneys of record, in fact, are not representing him”

might excuse complete inaction on the part of the petitioner for several years. See

Maples, 132 S.Ct. at 923. Mack provided the district court with no indication as to how

frequently he attempted to communicate with Graf, nor did he articulate the timing,

frequency, or types of assurances he received that predicated his own inaction. Instead,

Mack stated that “[w]hat Mr. Mack considers diligence in preserving and protecting his

constitutional rights . . . was his retention of counsel.” Doc. 22 at 5. We find no

authority suggesting that alone is enough to toll AEDPA’s one-year limitations period

indefinitely. Accordingly, in light of Mack’s “strong burden to show specific facts to
                                              6
support his claim of extraordinary circumstances and due diligence,” Archuleta, 525 F.3d

at 928, we conclude that reasonable jurists could not debate whether the district court

abused its discretion when it determined that Mack provided insufficient support for his

claim that he acted diligently in the face of extraordinary circumstances.

       Finally, we note that even if Mack had met his equitable-tolling burden for the

entire time he was represented by Graf—and we agree with the district court that he did

not—Mack’s one-year federal habeas limitations period would have expired during the

pendency of his December 2005 state habeas petition. The Colorado trial court denied

Mack’s petition as untimely in January 2006, the Colorado Court of Appeals affirmed the

denial in April 2008, and the Colorado Supreme Court denied certiorari in August 2008.

See 28 U.S.C.A. § 2244(d)(2) (instructing that AEDPA’s limitations period is tolled only

for the “time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending” (emphasis

added)); Artuz v. Bennett, 531 U.S. 4, 8, 11 (2000) (“[A]n application is ‘properly filed’

when its delivery and acceptance are in compliance with the applicable [state] laws and

rules governing filings,” including “time limits upon its delivery.” (emphasis in

original)). And even if Mack were somehow also entitled to equitable tolling during the

entire 2005-2008 pendency of his December 2005 state petition, Mack has no excuse for

waiting to file his federal petition for almost another four years after the state courts

resolved the December 2005 petition in August 2008. See Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir.2000) (“[I]gnorance of the law, even for an incarcerated pro se
                                               7
petitioner, generally does not excuse prompt filing.”). Thus, we conclude that reasonable

jurists would not debate whether the district court was correct in its procedural ruling.

                                     CONCLUSION

       Accordingly, we GRANT Mack’s motion to proceed IFP, but we DENY his

request for a COA and DISMISS this appeal.



                                           ENTERED FOR THE COURT



                                           David M. Ebel
                                           Circuit Judge




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