                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 18 1998
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 98-2148
           v.                                           (D. New Mexico)
 ENRIQUE PEDRAZA,                                  (D.C. No. 97-CIV-1519-SC)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , McKAY , and LUCERO , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Enrique Pedraza, a federal prisoner appearing pro se, seeks a certificate of

appealability to appeal the district court’s dismissal of his motion to vacate, set



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255. We deny a

certificate of appealability and dismiss the appeal.



                                   BACKGROUND

       Following a jury trial, Pedraza was convicted of one count of conspiracy to

possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and one

count of possession with intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1). On direct appeal, we affirmed his conviction. However, we

remanded for findings respecting Pedraza’s factual objections to the presentence

report as required by Fed. R. Crim. P. 32(c)(3)(D).    United States v. Pedraza , 27

F.3d 1515, 1530-31 (10th Cir. 1994). Pedraza subsequently appealed the district

court’s ruling on remand, and we affirmed in an unpublished order and judgment.

United States v. Pedraza , No. 94-2267, 1995 WL 755265 (10th Cir. Dec. 21,

1995). Pedraza also petitioned for, and was denied, certiorari on both of our

decisions. See Pedraza v. United States , 517 U.S. 1162 (1996) (order denying

certiorari); Pedraza v. United States , 513 U.S. 1004 (1994) (same). The second

denial of certiorari was issued on April 22, 1996.

       Nineteen months later, on November 26, 1997, Pedraza filed a Motion to

Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. In addition

to restating the points made on direct appeal, Pedraza disputed the court’s


                                           -2-
jurisdiction and argued ineffectiveness of counsel. Finding that the limitations

period imposed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) had run on April 23, 1997, the district court dismissed Pedraza’s

motion as untimely. R. Vol. I, Tab 4 at 2 (citing   United States v. Simmonds , 111

F.3d 737, 745-46 (10th Cir. 1997)).

       Pedraza then filed a motion for reconsideration, arguing that 1) applying a

time bar to habeas actions constituted an unconstitutional suspension of the writ,

and 2) a government impediment prevented him from making an earlier filing.

Regarding the impediment, Pedraza claimed that he was not able to file his § 2255

motion until he received a full set of trial transcripts. Detailing his efforts to

obtain the transcripts, he attached a July 1995 letter from the Public Defender’s

office which acknowledged Pedraza’s request for the transcripts and which

suggested that they could be sent after the appeal was complete. R. Vol. I, Tab 5,

Exh. A. Pedraza further described attempts to obtain a set of transcripts from a

codefendant’s attorney, which “after numerous phone conversations” over a

course of months “turned out to be a wasted effort” as the attorney ultimately

referred them to the Public Defenders.     Id. Tab 5 at 5. Next, according to

Pedraza’s motion, during the summer of 1996, the Public Defenders “decided to




                                           -3-
copy the set they had and sen[d]    1
                                        them to movant.”    Id. However, “while the

[Defender’s] office was being relocated, a number of boxes were misplaced some

of which contained movant’s transcripts, by the time they were located and ready

to be copied, several more months had gone by.”            Id. Eventually, in late January

1997, Pedraza received a set from another codefendant. However, that set did not

include the transcript of his sentencing hearing; the Public Defenders sent him a

copy of the sentencing hearing transcript in February 1997.             See Transmittal

Letter, R. Vol. I, Tab 5, Exh. C. Finally, the set of transcripts was missing some

thirty pages which Pedraza did not obtain until the summer of 1997. Thus, he

argued that the limitations period did not begin to run until summer 1997 when he

received a complete set of the transcripts.

       The district court denied the motion for reconsideration, concluding the

statute of limitations did not violate the Suspension Clause.       2
                                                                         The court then

found that Pedraza had failed to establish that 1) the lack of a complete transcript

set prevented him from making his § 2255 motion, or 2) the government had

caused the alleged delay in violation of the Constitution or other law. The district

court also denied Pedraza’s application for a certificate of appealability.



      Pedraza mistakenly typed “sent”—but as the context and other exhibits
       1

make clear, the Public Defenders never sent the trial transcripts.
       2
           On appeal, Pedraza does not contest this portion of the district court’s
ruling.

                                              -4-
                                      DISCUSSION

       The AEDPA governs the commencement of the limitations period,

providing that the one-year limitations period “shall run” from the latest of four

enumerated dates. 28 U.S.C. § 2255.        In effect, the statutory limitations period

“begins to run in accordance with individual circumstances that could reasonably

affect the availability of the remedy.”    Miller v. Marr , 141 F.3d 976, 978 (10th

Cir. 1998) (construing the one-year limitations period governing § 2254 petitions,

which is substantially identical to the period under § 2255).     However, we have

recognized that under appropriate extraordinary circumstances equitable tolling

principles may provide a basis for tolling the limitations period once it has begun

to run. Id. (recognizing that the limitation period imposed by the AEDPA is not

jurisdictional and may be subject to equitable tolling).

       In this case, Pedraza argues that the limitations period did not begin to run

until the summer of 1997, when he finally obtained a complete set of trial

transcripts. Relying on § 2255(2), he contends that government action prevented

him from making his motion. This argument is distinct from the argument that

the AEDPA’s limitation period should be        tolled based on equitable principles.

However, because we must construe pro se pleadings liberally, we will read

Pedraza’s motion to contain an equitable tolling claim as well.      See Haines v.

Kerner , 404 U.S. 519, 520-21 (1972).


                                            -5-
      1. Commencement of the Period under the Statute      . Pedraza argues that,

since the Public Defenders are government employees, their actions (or inaction)

in failing to send him the trial transcripts must be attributed to the government.

      Even though Public Defenders are, technically, government employees, the

“government [is not] meaningfully an employer responsible for the care with

which the lawyer does his work.”    Sullivan v. Freeman , 944 F.2d 334, 336 (7th

Cir. 1991) (analyzing whether the Federal Tort Claims Act applies to malpractice

claims against Public Defenders). Rather, “[i]n relation to the federal government

a federal defender is functionally an independent contractor,” and, under our

adversarial system, the public defenders’ actions vis à vis their clients are

generally beyond the government’s power to control.     Id. Certainly, were the

alleged delays caused by a privately retained attorney, there would be no

contention that the government should be held responsible.

      Furthermore, while Pedraza does attach one 1995 letter which substantiates

his early request that the public defenders send him the transcripts, his own

statement of the facts indicate that, during part of the period in which the

limitations period was running, he apparently made no attempt to obtain the

transcripts from the public defenders. Instead, he sought to secure them from the

attorney of a codefendant. R. Vol. I, Tab 5 at 5. Under the circumstances,




                                         -6-
Pedraza has simply failed to show that government action prevented him from

making his motion.

        2. Equitable Tolling . Because the statute may be subject to principles of

equitable tolling, we also consider Pedraza’s claims that he diligently attempted to

obtain the transcripts, and that it was impossible to make his motion without

them.

        In this case, we are simply not convinced that Pedraza has demonstrated

either the diligence or the prejudice necessary to invoke equitable tolling. While

he may have assumed that the limitations period would not apply under the

circumstances of his case, he did so at his peril. Instead of assuming the onus

would fall elsewhere, once the difficulties and delays in obtaining the transcripts

became apparent, Pedraza could have made a motion to the court for an order

directing his attorneys to send it to him, or he could have moved for an extension

of time to file his habeas motion.   3



        Moreover, despite Pedraza’s bald statement to the contrary, his petition is

not “replete[] with references to the transcripts.” Appellant’s Appl. for Cert. of

Appealability at 7. Rather, the petition generally restates the claims made on

direct appeal, together with claims regarding his attorney’s failure to follow his



        Pedraza claims to have contacted the clerk of the court for assistance, only
        3

to be referred back to his attorneys. However, he provides no documentation for
that contact.

                                         -7-
directions. When Pedraza does make specific complaints about his attorney’s

alleged ineffective trial performance, he provides no citation to the record.       4
                                                                                        Thus,

our reading of Pedraza’s petition reveals that the transcript may have provided

some modicum of information, but, in fact, the petition could have been

substantially written without it.   5



       Thus, having thoroughly reviewed Pedraza’s brief, his application for a

certificate of appealability, the district court’s order, and the record before us, we

conclude that Pedraza’s motion is time-barred, and that he has failed to make a

substantial showing of the denial of a constitutional right as required under 28

U.S.C. § 2253(c)(2) for the issuance of a certificate of appealability.         6




       Of the ten claims of attorney ineffectiveness set out in Pedraza’s petition,
       4

only three refer to specific trial exhibits or instances (without page citation,
however), and one of the three references was set out in our opinion on direct
appeal. Pedraza, 27 F.3d at 1525 (applying a plain error review “[b]ecause
Defendants failed to object or request . . . a limiting instruction”).
       5
        We do not accept Pedraza’s conclusory allegations that the lack of a
complete set of transcripts prevented him from making his motion. See Ruark v.
Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (stating that “naked allegations” are
not cognizable under federal habeas corpus statutes, and that “we are not
compelled to allow” habeas claimants to search trial transcripts for error); cf. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (stating that “conclusory
allegations without supporting factual averments are insufficient to state a claim
on which relief can be granted”).
       6
        As we noted in our prior opinion, there was “overwhelming evidence of
[Pedraza’s] guilt in this case.” Pedraza, 27 F. 3d at 1526. Thus, even if the
limitations period did not bar his § 2255 motion, we would find that the issues he
raises do not demonstrate ineffectiveness resulting in prejudice or any other
                                                                      (continued...)

                                            -8-
Accordingly, we decline to issue a certificate of appealability, and DISMISS the

appeal.


                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      6
       (...continued)
“substantial showing of the denial of a constitutional right.”

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