                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  October 9, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 15-2081
 v.                                          (D.C. Nos. 1:15-CV-00130-JB-WPL
                                                 and 1:08-CR-01669-JB-1)
 RICHARD ANTHONY McKENZIE,                                (D.N.M.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Defendant–Appellant Richard Anthony McKenzie, a federal inmate

appearing pro se, seeks a certificate of appealability (COA) to appeal from the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. The district court denied the motion as time-barred under

the one-year limitation period of § 2255(f). McKenzie v. United States, Nos. CIV

15-0130 JB/WPL, CR 08-1669 JB, 2015 WL 2226308 (D.N.M. April 30, 2015).

Because we determine that Mr. McKenzie has not shown “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,” we deny a COA and dismiss
the appeal. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Mr. McKenzie was convicted of possession with intent to distribute 500 or

more grams of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and sentenced to 262

months’ imprisonment and four years’ supervised release. The judgment was

affirmed on direct appeal. United States v. McKenzie, 532 F. App’x 793, 797

(10th Cir. 2013). Mr. McKenzie submitted an untimely petition for rehearing

which the panel accepted for filing and denied on September 11, 2013. Thus, it

appears that Mr. McKenzie’s conviction became final at the latest on December

10, 2013, when the 90-day period for filing a petition for writ of certiorari

expired. See Clay v. United States, 537 U.S. 522, 525, 532 (2003). Mr.

McKenzie’s § 2255 motion was filed on February 13, 2015, well after the one-

year limitation period.

      On appeal, Mr. McKenzie argues that the district court erred when it

rejected his grounds for equitable tolling: (1) he attempted to file his § 2255

motion while his direct appeal was pending, (2) he sought transcripts, and (3) he

was pursuing a state post-conviction matter which could affect his § 2255 motion

and was unaware that he could not delay the filing of his § 2255 motion. He

argues that he has shown the necessary diligence, and presumably the

extraordinary circumstance, for equitable tolling. See Holland v. Florida, 560

U.S. 631, 649 (2010); Lawrence v. Florida, 549 U.S. 327, 336 (2007); Yang v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). We do not think that the district

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court’s contrary conclusion is reasonably debatable—none of these circumstances

demonstrate the level of diligence, despite an extraordinary circumstance, that

would be necessary for equitable tolling. While counsel, a transcript, and more

information about possible grounds for a § 2255 motion could be helpful, they are

by no means required to file a timely § 2255 motion—Mr. McKenzie’s delay in

filing a timely § 2255 motion cannot be excused with equitable tolling. This is

true even if he was unaware of the consequences of that delay. Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000).

       We DENY a COA, DENY IFP, and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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