                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALSFebruary 5, 2019

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 18-3126
 v.                                         (D.C. Nos. 5:10-CR-40037-DDC-1 &
                                                   5:13-CV-04099-RDR)
 RISHEEN DANIEL ROBINSON,                                 (D. Kan.)

              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.


      Risheen Daniel Robinson, an inmate in federal custody proceeding pro se, 1

requests a certificate of appealability (“COA”) to appeal from (1) a district court

order denying his motion under Federal Rule of Civil Procedure (“Rule”) 59(e),

which had sought to amend an order denying him relief under Rule 60(b), and

(2) the underlying Rule 60(b) ruling, which denied him relief from an order


      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
      1
             Because Mr. Robinson appears pro se, we afford his filings a liberal
construction, but we refrain from serving as his advocate. See, e.g., Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010); Ford v. Pryor, 552 F.3d 1174,
1178 (10th Cir. 2008).
denying his 28 U.S.C. § 2255 motion. Mr. Robinson also moves to proceed in

forma pauperis (“IFP”) in this appeal.

      Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr. Robinson’s

request for a COA and dismiss this matter. However, we do grant Mr. Robinson’s

request to proceed IFP.

                                         I

      In 2010, Mr. Robinson was convicted of distributing a controlled substance

in violation of 21 U.S.C. § 841(a)(1). The Probation Office prepared a

Presentence Investigation Report (“PSR”), which recommended applying the

career-offender enhancement of United States Sentencing Guidelines

(“Guidelines”) § 4B1.1 based on four prior convictions under Kansas law. Mr.

Robinson objected to the recommendation on due process grounds and under the

Eighth Amendment, but the district court designated Mr. Robinson a career

offender and sentenced him to 262 months’ imprisonment.

      On direct appeal, Mr. Robinson argued that the evidence supporting his

conviction was insufficient and that his sentence was substantively unreasonable,

but a panel of this court rejected those challenges. United States v. Robinson, 437

F. App’x 733, 735 (10th Cir. 2011) (unpublished). In doing so, the panel

specifically observed that “Mr. Robinson doesn’t dispute that he qualifies as a

‘career offender’ under the [G]uidelines.” Id. The Supreme Court denied Mr.



                                         2
Robinson a writ of certiorari on January 9, 2012. See Robinson v. United States,

565 U.S. 1136, 1136 (2012).

      In August 2013, Mr. Robinson filed a § 2255 motion arguing that his state

convictions did not qualify as career-offender predicate convictions. The district

court denied the motion on several grounds. First, it ruled that the motion was

untimely because more than one year had passed between Mr. Robinson’s

conviction becoming final and the motion’s filing. Second, it ruled that Mr.

Robinson’s claims were procedurally defaulted for failure to raise them on direct

appeal and that he had not shown cause or prejudice to excuse the default or the

possibility of a fundamental miscarriage of justice if the default was not excused.

Third, it rejected the motion on the merits, observing particularly that the PSR

had been re-numbered during amendments and, as a result, Mr. Robinson’s

arguments concerned convictions that were not actually used as predicate

convictions. The district court reviewed the PSR, finding that it listed one Kansas

aggravated-robbery conviction and three Kansas convictions for possession of

illegal drugs with the intent to distribute. The district court ruled that any two of

these felony convictions would have been sufficient to designate Mr. Robinson a

career offender. Mr. Robinson appealed from the district court’s ruling, but his

appeal was dismissed for failure to prosecute.

      Years later, in July 2017, Mr. Robinson filed a Rule 60(b) motion asking



                                          3
the district court to set aside its order denying his § 2255 motion. He argued that,

in connection with the filing of his § 2255 motion, an inmate legal assistant had

failed to raise two ineffective-assistance-of-counsel claims. These claims faulted

his counsel at sentencing for failing to argue that (1) he previously had been

sentenced on all of his predicate drug convictions on the same day, and,

consequently, they counted at most as a single predicate conviction; and (2) none

of his drug convictions were proper predicate convictions because the statutes

under which he was convicted criminalized a mere offer to sell controlled

substances. His argument concerning the date of the predicate convictions was

based on the district court’s correction, in February 2017, of the date of one

conviction listed in the PSR. The Rule 60(b) motion also claimed in passing that

the inmate legal assistant’s inadequate assistance had caused the § 2255 motion to

be untimely filed.

      The Rule 60(b) motion relied significantly on the Supreme Court’s opinions

in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413

(2013), which essentially held—in habeas proceedings concerning state

convictions—that “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” Martinez, 566 U.S. at 9; see also Trevino, 569

U.S. at 417 (extending “the Martinez exception” to apply not only where a state



                                          4
system requires ineffective-assistance claims to be raised on collateral review, as

in Martinez, but also to situations where a state system’s “structure and design”

make it “virtually impossible” for such claims to be presented on direct review).

      However, the district court ruled that, although the motion was a “true”

Rule 60(b) motion (rather than a disguised successive § 2255 motion), it failed.

The court first stated that Mr. Robinson could not use a Rule 60(b) motion as a

substitute for an appeal from the denial of his § 2255 motion. The court also

found that Mr. Robinson could have raised his ineffective-assistance claims

during direct appeal. Further, the court ruled that its correction of the PSR did

not affect the timeliness of the § 2255 motion, stating that the timeliness analysis

was a function only of the date of the § 2255 motion and the date when Mr.

Robinson’s conviction became final. Finally, the court opined that inadequate

legal assistance from an inmate in litigating a § 2255 motion was not an

extraordinary circumstance that might permit relief under Rule 60(b)(6), see Buck

v. Davis, --- U.S. ----, 137 S. Ct. 759, 777–78 (2017) (“[R]elief under Rule

60(b)(6) is available only in ‘extraordinary circumstances.’” (quoting Gonzalez v.

Crosby, 545 U.S. 524, 535 (2005))), noting particularly that there is no right to

counsel in collateral proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555

(1987). In the course of its decision, the district court rebuffed Mr. Robinson’s

invitation to rely on Martinez and Trevino, finding those cases to be inapposite.



                                          5
      In 2018, Mr. Robinson filed a Rule 59(e) motion requesting that the district

court alter its Rule 60(b) ruling. He argued that his Rule 60(b) motion was not a

“substitute” for an appeal but instead challenged a “defect in the integrity of the

prior habeas proceedings.” R., Vol. III, at 19 (Mot. to Alter or Amend J., filed

Jan. 2, 2018) (capitalization altered). He also contended that the district court

erred in ruling that Martinez and Trevino did not apply, especially in light of the

Tenth Circuit’s “strong policy” against deciding ineffective-assistance claims on

direct appeal. See id. at 26; see also United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should

be brought in collateral proceedings, not on direct appeal. Such claims brought

on direct appeal are presumptively dismissible, and virtually all will be

dismissed.”).

      The district court denied the motion on largely the same grounds that it had

denied Rule 60(b) relief, ruling that Mr. Robinson’s Rule 59(e) motion

repackaged the same arguments. The district court stated that Mr. Robinson

“continue[d] to misapply” Martinez and Trevino to his § 2255 proceedings, which

were neither “initial-review collateral proceedings” nor “their functional

equivalent.” R., Vol. III, at 42 (Order, dated June 6, 2018). Mr. Robinson timely

filed a notice of appeal, and, following a limited remand, the district court denied




                                          6
a COA. 2

                                             II

                                             A

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a COA is a jurisdictional prerequisite to this court’s review of a

“final order” in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B); see also

Gonzalez v. Thaler, 565 U.S. 134, 142 (2012) (discussing, inter alia, the “clear”

jurisdictional language in § 2253(c)(1)). Where a district court rests its order

denying a § 2255 motion on procedural grounds, then a prisoner is entitled to a

COA to challenge the order “when the prisoner shows, at least, 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.

       2
                 We note that we have jurisdiction to review both the Rule 60(b) and
Rule 59(e) rulings. The district court denied Rule 60(b) relief in an order entered
on the docket on December 4, 2017. Mr. Robinson’s Rule 59(e) motion was
timely filed on January 2, 2018, the first business day after New Year’s Day, see
F ED . R. C IV . P. 6(a)(1), 6(a)(6); F ED . R. C IV . P. 59(e), and the sixty-day notice-of-
appeal deadline as to both rulings thus “r[an] . . . from” the entry of the June 6,
2018 order disposing of the Rule 59(e) motion. See F ED . R. A PP . P.
4(a)(4)(A)(iv), 4(a)(4)(B)(ii); R. G OVERNING S ECTION 2255 P ROCEEDINGS FOR
U.S. D IST . C TS . 11(b). Within that period, Mr. Robinson filed both a notice of
appeal challenging the Rule 59(e) ruling and a combined brief and COA motion
challenging the Rule 60(b) ruling. See Smith v. Barry, 502 U.S. 244, 248–49
(1992) (holding that document filed within notice-of-appeal period and providing
notice of rulings a party seeks to appeal may serve as the “functional equivalent”
of a notice of appeal).

                                              7
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); see also United States v.

McKenzie, 803 F.3d 1164, 1164–65 (10th Cir. 2015) (applying Slack standard to

denial of § 2255 motion).

      As relevant here, this COA requirement applies to appeals from rulings on

“true” motions under Rules 59(e) and 60(b) in § 2255 proceedings. See Spitznas

v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006) (applying COA requirement to

appeal from an order denying a Rule 60(b) motion in a § 2254 proceeding); see

also United States v. Tatum, 613 F. App’x 770, 770 (10th Cir. 2015)

(unpublished) (“We retain jurisdiction . . . to consider whether Tatum is entitled

to a COA permitting review of the district court’s denial of his Rule 59(e)

motion.”); United States v. Cobb, 307 F. App’x 143, 145 (10th Cir. 2009)

(unpublished) (observing, in § 2255 proceeding, that Spitznas’s reasoning

underlying COA requirement for appeal of Rule 60(b) ruling “applies equally to

motions under Rule 59(e)”). 3

      3
              A Rule 59(e) or 60(b) motion is more properly characterized as a
second or successive request for habeas relief “if it in substance or effect asserts
or reasserts a federal basis for relief from the petitioner’s underlying conviction.”
Spitznas, 464 F.3d at 1215 (addressing Rule 60(b) motion); see also United States
v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (“Rule 59(e) motions are subject
to the same characterization.”). In contrast, a “true” motion under these
provisions (like Mr. Robinson’s) (1) “challenges only a procedural ruling of the
habeas court which precluded a merits determination of the habeas application” or
(2) “challenges a defect in the integrity of the federal habeas proceeding,
provided that such a challenge does not itself lead inextricably to a merits-based
attack on the disposition of a prior habeas petition.” Spitznas, 464 F.3d at
                                                                         (continued...)

                                          8
                                          B

         Mr. Robinson requests a COA to appeal from the district court’s rulings on

his Rule 59(e) and Rule 60(b) motions, arguing that the district court erred in

ruling that Martinez and Trevino were inapposite. He relies principally on the

Seventh Circuit’s opinion in Ramirez v. United States, 799 F.3d 845 (7th Cir.

2015), to support the proposition that Martinez and Trevino apply in § 2255

proceedings. See Aplt.’s Opening Br. & COA Mot. at 1, 6, 8, 11, 16. He also

argues that his underlying ineffective-assistance claim is “substantial” because his

Kansas drug convictions are not proper career-offender predicate convictions. Id.

at 14.

         Mr. Robinson is not entitled to a COA. Even assuming that he has raised a

debatable issue concerning the general applicability of Martinez and Trevino in

§ 2255 proceedings, 4 Martinez’s “narrow exception” was expressly limited to


         3
        (...continued)
1215–16; Pedraza, 466 F.3d at 932 (similarly distinguishing between “a second
§ 2255 motion” and “a ‘true’ Rule 59(e) motion”); see also In re Pickard, 681
F.3d 1201, 1206 (10th Cir. 2012) (cautioning against reading the language—“lead
inextricably to a merits-based attack”—“too expansively”; in particular, it should
not be read to say “that a motion is an improper Rule 60(b) motion if success on
the motion would ultimately lead to a claim for relief under § 2255” (emphasis
added)).
         4
             It should be remembered that Martinez and Trevino both involved a
state prisoner seeking relief in federal court under 28 U.S.C. § 2254—not a
federal prisoner pursuing relief under 28 U.S.C. § 2255, as here—and the alleged
ineffectiveness of post-conviction counsel in those two cases arose in state post-
                                                                      (continued...)

                                          9
“establish[ing] cause for a prisoner’s procedural default” in raising a claim of

ineffective assistance of trial counsel. 566 U.S. at 9. And Trevino simply

extended “the Martinez exception” to apply to additional, less formally restrictive

collateral-review systems. 569 U.S. at 417. Mr. Robinson’s § 2255 motion,

however, was denied on a basis other than such procedural default; specifically,

as relevant here, the motion was denied because it was untimely given that it was

not filed within one year of Mr. Robinson’s conviction becoming final. See 28

U.S.C. § 2255(f)(1); see also United States v. Willis, 202 F.3d 1279, 1280 (10th

Cir. 2000) (holding that, in general, a conviction becomes final for purposes of

filing § 2255 motion when the Supreme Court denies certiorari after direct

appeal). While this limitations period can be equitably tolled, see, e.g.,

McKenzie, 803 F.3d at 1165, courts applying the rubric of Martinez and Trevino

in the state-habeas context have uniformly rejected the proposition that its

“narrow” procedural-default exception pertains to a petition’s timeliness. See

Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) (“[T]he Martinez rule

explicitly relates to excusing a procedural default of ineffective-trial-counsel

claims and does not apply to AEDPA’s statute of limitations or the tolling of that

period.”); Shank v. Vannoy, No. 16-30994, 2017 WL 6029846, at *2 (5th Cir. Oct.

      4
       (...continued)
conviction proceedings, not federal proceedings, like here. We are content to
assume arguendo that the applicability of the rubric of Martinez and Trevino in
the § 2255 context is debatable by reasonable jurists.

                                          10
26, 2017) (unpublished) (“Martinez considered whether ineffective assistance of

counsel excuses procedural default . . . not whether it excuses late filing.”);

Taylor v. Eppinger, No. 16-4227, 2017 WL 5125666, at *2 (6th Cir. June 2, 2017)

(unpublished) (“Taylor cites only cases holding that ineffective assistance of

counsel in state proceedings may provide cause to excuse procedural default. . . .

But that principle is inapplicable here, where the limitations period is at issue[,]

and procedural default is not.” (citation to Martinez omitted)); Bland v.

Superintendent Greene SCI, No. 16-3457, 2017 WL 3897066, at *1 (3d Cir. Jan.

5, 2017) (unpublished) (“Martinez has nothing to with the governing statute of

limitations and cannot excuse a failure to file within the limitations period.”).

      Indeed, after it issued Ramirez—upon which Mr. Robinson’s

Martinez/Trevino argument is primarily premised—the Seventh Circuit expressly

declined to rule that Martinez and its progeny were relevant to a § 2255 movant’s

timeliness arguments. See Lombardo v. United States, 860 F.3d 547, 558–61 (7th

Cir. 2017) (declining to “recognize Martinez’s framework as a means of

establishing extraordinary circumstances for the purposes of equitable tolling,”

rejecting movant’s argument that Ramirez could be used to “bridg[e] the gap,”

and requiring showing of “abandonment or egregious attorney misconduct” to

obtain equitable tolling), cert. denied, 138 S. Ct. 1032 (2018). Mr. Robinson

provides no argument undercutting this reasoning: certainly, it cannot be argued



                                          11
that Martinez/Trevino expressly addressed timeliness or tolling. More

specifically, Mr. Robinson has provided us with no reason to believe that

Martinez’s “narrow exception” should be expanded to provide relief from

AEDPA’s limitations bar. Thus, Mr. Robinson cannot avail himself of the

holdings of Martinez and Trevino on the question of whether his § 2255 motion

was timely.

      Furthermore, under the timeliness principles that ordinarily govern, it is

patent that Mr. Robinson is not entitled to a COA with respect to the district

court’s orders denying his Rule 60(b) and Rule 59(e) motions. Under the

circumstances here, in order for the district court’s disposition of either motion to

be debatable by reasonable jurists, Mr. Robinson ultimately must demonstrate that

the court’s underlying ruling on his § 2255 motion is (at least) reasonably

debatable. That is because, through his Rule 60(b) and Rule 59(e) motions, Mr.

Robinson effectively seeks to resuscitate his § 2255 motion by calling into

question the denial of that motion. If, however, the district court’s rejection of

his § 2255 motion as untimely is beyond debate by reasonable jurists, its rejection

of his subsequent Rule 60(b) and Rule 59(e) motions must be as well: the district

court’s § 2255 ruling would stand as a plain procedural bar to any substantive

relief that Mr. Robinson hopes to secure by upending that ruling through his

subsequently filed Rule 60(b) and Rule 59(e) motions. See Davis v. Roberts, 425



                                          12
F.3d 830, 834 (10th Cir. 2005) (noting that “we may deny a COA if there is a

plain procedural bar to habeas relief”); see also United States v. Gomez-Alvarez,

554 F. App’x 749, 751 (10th Cir. 2014) (unpublished) (refusing to issue a COA to

appeal from the denial of a Rule 59(e) motion because “the portions of the filing

that arguably attacked the validity of the § 2255 proceeding were meritless,” and

so “[n]o reasonable jurist could debate the decision to deny those portions of the

filing or, in the alternative, to dismiss them”). And we conclude that in fact the

court’s rejection of Mr. Robinson’s § 2255 motion—specifically, on the

procedural ground of timeliness—is beyond debate by reasonable jurists.

      After his direct appeal, the Supreme Court denied a writ of certiorari on

January 9, 2012, but Mr. Robinson’s § 2255 motion was not filed until August

2013—i.e., more than one year later. Therefore, this motion was facially

untimely. Indeed, Mr. Robinson’s Rule 59(e) motion acknowledged that “[a]t no

point in his [Rule] 60(b) [motion] did Mr. Robinson dispute the clear fact that his

initial [§] 2255 [motion] was untimely.” R., Vol. III, at 22 (emphasis added).

      Mr. Robinson contends that an inmate legal assistant “misinformed [him],”

in an unspecified way, of the time he had to file his initial § 2255 motion and

“further failed to meet the deadline,” Aplt.’s Opening Br. & COA Mot. at 6–7, but

these vague allegations fall far short of extraordinary circumstances that might

cast the district court’s timeliness ruling into doubt. See Sigala v. Bravo, 656



                                         13
F.3d 1125, 1128–29 (10th Cir. 2011) (observing that litigant seeking equitable

tolling must show, inter alia, that “extraordinary circumstances” stood in his way,

and a “‘garden variety claim of excusable neglect’ is not enough” (quoting Irwin

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))); see also Dominguez v.

Hatch, 440 F. App’x 624, 626 (10th Cir. 2011) (unpublished) (“Equitable tolling

may be applied when the attorney misrepresents a filing deadline in a particularly

egregious way, or deliberately hides information from his client in order to cover

up his misdeeds. But a miscalculation or misinterpretation of the statutory

provision regarding the limitation period, with nothing more, does not rise to the

level of misconduct that would justify equitable tolling.” (citations omitted));

Gunderson v. Abbott, 172 F. App’x 806, 810 (10th Cir. 2006) (unpublished)

(observing that attorney error is generally not a basis for equitable tolling and that

the argument for error was “even less compelling” where habeas petitioner never

formally retained counsel but simply attempted to solicit advice from public

defender).

      Similarly unavailing is Mr. Robinson’s contention that his motion should be

deemed timely because “an inmate legal assistant is the equivalent of ‘no

counsel,’” Aplt.’s Opening Br. & COA Mot. at 13; this argument fails because pro

se status and ignorance of the law do not give rise to equitable tolling. See, e.g.,

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (characterizing this



                                          14
proposition as “well established”); cf. Valles v. Hansen, 743 F. App’x 162, 164

(10th Cir. 2018) (unpublished) (“We have also repeatedly enforced the one-year

limitations period against pro se petitioners in the absence of equitable tolling,

even if counseled petitioners are better equipped to comply with the time limit.”). 5

      Thus, Mr. Robinson has done nothing to undercut the timeliness analysis

that led the district court to deny his § 2255 motion. In other words, Mr.

Robinson has not demonstrated that the district court’s procedural rejection of his

§ 2255 motion is reasonably debatable. Consequently, Mr. Robinson cannot fare

any better here with respect to his Rule 60(b) and Rule 59(e) motions—which

seek to resuscitate his § 2255 motion. More specifically, Mr. Robinson has not

shown that reasonable jurists would debate the district court’s resolution of those

two motions. Therefore, we deny Mr. Robinson’s request for a COA and dismiss

this matter.

                                          III

      We also consider Mr. Robinson’s motion for IFP status. In order to

      5
               We note that Mr. Robinson argued in district court that he was not
aware of “the issue” raised in his Rule 60(b) motion until the district court
corrected the PSR earlier in the same year. See R., Vol. III, at 21. Although the
start of the limitations period may sometimes be delayed due to the discovery of
new facts, it is delayed only through “the date on which the facts . . . could have
been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4)
(emphasis added). Even if Mr. Robinson’s argument—which was made only in
the district court—were cognizable here, we would decline to examine its merits
because Mr. Robinson has never addressed the import of the due-diligence
standard for his case, and we will not serve as his advocate.

                                          15
proceed IFP on appeal, Mr. Robinson must make a “reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Although Mr.

Robinson is not entitled to a COA, his arguments are not so thoroughly frivolous

that IFP status should be denied. We according grant Mr. Robinson’s IFP motion.

                                        IV

      For the foregoing reasons, we DENY Mr. Robinson’s application for a

COA and DISMISS this matter. We GRANT his motion to proceed IFP.



                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




                                        16
