                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                   September 25, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT


 JAMES A. PENN, JR.,

          Petitioner - Appellant,

 v.                                                        No. 09-3117
                                                             (D. Kan.)
 SAM KLINE, Warden, Hutchinson                   (D.Ct. No. 5:08-CV-03267-SAC)
 Correctional Facility; and
 ATTORNEY GENERAL OF
 KANSAS,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      James Penn, Jr., a state prisoner appearing pro se and in forma pauperis,

seeks to appeal from the district court’s dismissal of his 28 U.S.C. § 2254 petition

for habeas corpus. 1 The district court concluded the petition was time-barred and

Penn was not entitled to equitable tolling. We agree the petition was untimely

and deny his request for a certificate of appealability (COA).




      1
        We liberally construe Penn’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
                                I. BACKGROUND

      Penn was convicted in Kansas state court on one count of first degree

murder, two counts of attempted aggravated robbery, one count of aggravated

assault and one count of criminal possession of a firearm. He was sentenced to a

term of life imprisonment plus 192 months. On June 1, 2001, the Kansas

Supreme Court affirmed Penn’s conviction and sentence. Penn did not file a

petition for writ of certiorari with the United States Supreme Court. His

conviction became final on August 30, 2001, when the time to file a petition

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

tolling, the one-year period of limitations set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)(A), ran on

August 30, 2002.

      Almost one year later, on August 29, 2003, Penn filed a motion for post-

conviction relief in Kansas state court. He withdrew the action on September 26,

2003. On June 30, 2004, he filed a second motion for post-conviction relief in

state court, which was denied on January 20, 2005. The Kansas Court of Appeals

affirmed on May 5, 2006. The Kansas Supreme Court denied review on

September 22, 2008.

      On October 20, 2008, Penn filed a 18 U.S.C. § 2254 petition for habeas

corpus in federal district court. The respondents moved to dismiss the petition

because it was not filed within the AEDPA limitations period. Penn

                                         -2-
acknowledged his petition was untimely but argued he was entitled to equitable

tolling because he received ineffective assistance of counsel from his post-

conviction attorney, Sarah Cato. He explained that on October 18, 2001, his wife

hired Cato to pursue post-conviction remedies on his behalf. He claims Cato

“agreed to facilitate the filing of a state habeas corpus action . . . .” (R. Vol. I at

121.) He alleges:

      As time went by, [I] was not contacted by [Cato], nor was anything
      filed in the courts to preserve the time, [I] made numerous attempts
      to contact [Cato] and retrieve [my] trial records and [my] payment
      that [I] made so [I] could attempt to hire another attorney to timely
      preserve [my] filing rights either in the State Courts or in the Federal
      Courts.

(Id. at 27.) On November 6, 2002, Penn’s wife sent a letter to Cato demanding

she immediately withdraw from the case and refund all amounts paid. On

November 26, 2002, Penn’s wife filed a police report against Cato. On October

8, 2005, the Missouri Bar Association held a hearing regarding Penn’s claim

against Cato. Following the hearing, the Missouri Bar Client Security Fund

Committee reimbursed Penn $5,720. Cato was subsequently disbarred. Penn

argued “Cato’s performance fell even beyond egregious misconduct, into illegal

activity. Beyond unethical attorney to scam artist.” 2 (Id. at 125.)


      2
        A local newspaper reported on the allegations against Cato’s law practice. See
Bruce Rashton, Teflon Tiller, RIVERFRONT TIMES, Oct. 30, 2002, available at
http://www.riverfronttimes.com/2002-10-30/news/teflon-tiller/ (last visited July 21,
2009).


                                           -3-
       The district court concluded Penn was not entitled to equitable tolling. It

acknowledged Penn “describe[d] egregious conduct” but explained: “[B]ecause

there is no constitutional right to counsel in a post-conviction action, a petitioner

cannot claim constitutionally ineffective assistance of counsel in such

proceedings.” (Id. at 158 (quotations omitted)). 3 The district court denied Penn’s

application for a COA.

                                   II. DISCUSSION

       “[A] state prisoner must obtain a COA to appeal the denial of a habeas

petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever

the detention complained of in the petition arises out of process issued by a State

court.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (quotations

omitted). We will issue a COA “only if the applicant has made a substantial

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

the district court dismissed Penn’s petition on procedural grounds, he must

demonstrate both 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). “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of


       3
         The district court also rejected Penn’s argument he was entitled to equitable
tolling on account of actual innocence. Penn does not pursue that argument here.

                                            -4-
the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

      Penn does not contest his petition was filed outside the one year limitations

period. Thus, the question presented is whether the district court erred in denying

Penn’s claim for equitable tolling. We review a district court’s decision to deny

equitable tolling for an abuse of discretion. Fleming v. Evans, 481 F.3d 1249,

1254 (10th Cir. 2007). Equitable tolling applies only in “rare and exceptional

circumstances.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)

(quotations omitted). “Generally, equitable tolling requires a litigant to establish

two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d

925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of

establishing that equitable tolling should apply. Miller v. Marr, 141 F.3d 976,

978 (10th Cir. 1998).

      As the district court correctly noted, there is no constitutional right to

counsel beyond the first appeal of right. See Pennsylvania v. Finley, 481 U.S.

551, 555-56 (1987). However, in Fleming, we held “sufficiently egregious

misconduct on the part of a habeas petitioner’s counsel may justify equitable

tolling of the AEDPA limitations period.” 481 F.3d at 1256. Fleming hired

counsel to represent him in state post-conviction proceedings. He subsequently

                                          -5-
made a number of inquiries as to the status of his petition and was told each time

it was being prepared and would soon be filed. Aware the statute of limitations

deadline was approaching, Fleming ultimately took matters into his own hands

and drafted a petition with the help of a prison clerk, which he submitted to his

counsel for review and filing. However, counsel did not file it until after the

AEDPA deadline had passed. We concluded Fleming “ha[d] alleged enough facts

to warrant, at a minimum, an evidentiary hearing to determine whether he is

entitled to equitable tolling.” Id. at 1256-57. We noted Fleming was alleging

more than “mere negligence” on the part of his attorney. Id. at 1256. Instead, he

claimed his attorney “deceived him into believing that he was actively pursuing

Mr. Fleming’s legal remedies when, in fact, he was not.” Id.

      Assuming the facts Penn alleged in his petition and in opposition to the

motion to dismiss are true, Cato’s failure to communicate with Penn and,

ultimately, her failure to file a petition for post-conviction relief in state court,

may have been sufficiently egregious to equitably toll the limitations period—but

not indefinitely. The limitations period began to run on August 30, 2001, and was

possibly tolled from October 18, 2001, the date Cato was retained, until, at the

latest, November 6, 2002, when Penn’s wife sent a letter to Cato demanding she

immediately withdraw from the case and refund all amounts paid. At that point,

Penn was no longer relying upon his attorney and, unlike the petitioner in

Fleming, could no longer have been misled by his attorney’s actions (or lack

                                           -6-
thereof).

      Penn argues: “After Ms. Cato’s termination [he] still diligently pursued

justice in his case by contacting the courts, seeking help from the midwest

innocence project, and by attempting to file a pro se action himself, even though

he had no materials to work from.” (Opening Br. at 10-11.). We disagree. From

November 6, 2002, Penn waited more than nine months, until August 29, 2003, to

file a pro se motion for post-conviction relief in state court. He withdrew that

motion on September 26, 2003, and waited an additional nine months, until June

30, 2004, to file a subsequent motion. Considering the time that elapsed before

Penn hired Cato and the time that elapsed after the Kansas Supreme Court denied

review of Penn’s state court motion for post-conviction relief, his federal habeas

petition was 283 days late. See Attachment A. Penn’s delay of almost nine and

one-half months does not establish the diligence required for equitable tolling.

      Because his petition is barred by AEDPA’s statute of limitations, we

DENY Penn’s request for a COA and DISMISS this matter.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                         -7-
                              ATTACHMENT A


   DATE                        ACTION                        DAYS    DAYS
                                                            REMAIN   LATE
                                                              ING
August 30,      Penn’s conviction became final,              365
2001            limitations period begins to run
October 18,     Penn’s wife retains Cato, limitations
2001            period tolled                                317
November 6,     Penn’s wife demands Cato’s
2002            withdrawal, limitations period restarts      317
August 29,      Penn files motion for post-conviction
2003            relief in state court, limitations period     22
                tolled
September       Penn withdraws motion for post-
26, 2003        conviction relief, limitations period
                restarts                                      22
June 30, 2004   Penn files second motion for post-
                conviction relief in state court,                    255
                limitations period tolled
September       Kansas Supreme Court denies review                   255
22, 2008        of Penn’s motion for post-conviction
                relief, limitations period restarts
October 20,     Penn files federal habeas petition                   283
2008




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