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

                                   TENTH CIRCUIT                             February 28, 2019

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 WILLIE J. TRIMBLE, JR.,

               Petitioner - Appellant,

 v.                                                          No. 18-1490
                                                    (D.C. No. 1:18-CV-01336-LTB)
 WARDEN: MATHEW HANSEN, and                                   (D. Colo.)
 THE ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

               Respondents - Appellees.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


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



       On December 9, 2009, Willie J. Trimble was sentenced to life imprisonment

without parole after a Colorado state jury convicted him of sexual assault and felony

murder. The Colorado Court of Appeals (CCA) affirmed his conviction on direct appeal

on September 12, 2013, and the Colorado Supreme Court denied his certiorari petition on

July 28, 2014. Trimble delivered a state petition for post-conviction review to the prison

mailroom on October 25, 2015; it was filed three days later. The state trial judge denied

relief. The CCA affirmed and the Colorado Supreme Court again denied certiorari review
on May 21, 2018. Four days later, Trimble filed a pro se 28 U.S.C. § 2254 petition.1

       The district judge dismissed the petition as time-barred. Trimble wishes to appeal

and seeks a certificate of appealability (COA), a jurisdictional prerequisite. 28 U.S.C.

§ 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The judge denied a COA,

so he renews his request here.

       A COA is warranted “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here, Trimble must show

“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 judge’s written opinion was abundantly clear and the result indisputably

correct. A COA applicant who merely regurgitates arguments made in the district court is

doomed to failure. He must tangibly show how and why the judge’s ruling is reasonably

debatable. That is hard work; Trimble hasn’t even broken a sweat.

       Because Trimble did not seek certiorari review with the United States Supreme

Court during his direct appeal proceedings, the judge recognized his conviction as final

on October 27, 2014—the next business day after the 90-day window closed for filing a

petition for a Writ of Certiorari with the United States Supreme Court. See Sup. Ct. R.

13.1; Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Absent tolling, he had one


       1
        We read Trimble’s pro se materials with a solicitous attitude but don’t act as his
advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).



                                            -2-
year from that date, or until October 27, 2015, in which to apply for federal habeas relief.

28 U.S.C. § 2244(d)(1)(A). He did not file his § 2254 petition until May 25, 2018.2

       State petitions for post-conviction relief generally toll the time limitations for

seeking federal habeas relief. 28 U.S.C. § 2244(d)(2). Be that as it may, the federal

district judge concluded Trimble was not entitled to statutory tolling because the state

court received his state petition for post-conviction relief on October 28, 2015, one day

after the federal habeas limitations period had expired. Trimble contends the federal

judge erred because he is entitled to the “mailbox rule.” Aplt.’s Opening Br. & COA

Mot. at 7. In this context, state—not federal—procedural law governs. Garcia v. Shanks,

351 F.3d 468, 471-72 (10th Cir. 2003). To Trimble’s benefit, Colorado has a mailbox

rule. Colo. R. Civ. P. 5(f) (2018).3 Assuming he complied with that rule’s requirements,

his state habeas petition was “filed” on October 25, 2015, within the one-year allotted by

§ 2244(d). Accordingly, his federal habeas limitations period was statutorily tolled on

that date pending resolution of his state habeas claims. See Clark v. Oklahoma, 468 F.3d

711, 714 (10th Cir. 2006). That helps him, but not enough.



       2
        The district court did not receive Trimble’s § 2254 petition until May 31, but the
Colorado Department of Corrections received the petition for mailing on May 25.
Compare R. at 4 with R. at 15. The judge did not explicitly discuss it, but he seems to
have given Trimble the benefit of a prison mailbox rule. See Rule 3(d), Rules Governing
§ 2254 Cases.
       3
          In Colorado, “a pleading or paper filed or served by an inmate confined to an
institution is timely filed or served if deposited in the institution’s internal mailing system
on or before the last day for filing or serving.” Colo. R. Civ. P. 5(f). If the prison has a
legal-mail system, “the inmate must use that system to receive the benefit of this rule.”
Id.

                                             -3-
       As the judge also realized, state habeas proceedings toll the federal habeas statute

of limitations while those proceedings are “pending.” 28 U.S.C. § 2244(d)(2). Trimble’s

state habeas proceedings were pending only until May 21, 2018, when the Colorado

Supreme Court denied certiorari review. The next day statutory tolling ceased and the

available time for filing a federal habeas petition resumed its relentless decline. Lawrence

v. Florida, 549 U.S. 327, 332 (2007) (tolling ceases under § 2244(d)(2) “[a]fter the

State’s highest court has issued its mandate or denied review”). The bar imposed by

federal law fell two days after the Colorado Supreme Court denied certiorari review—

May 23, 2018. Trimble’s May 25, 2018 filing came too late.

       Trimble urges us to consider his § 2254 petition as timely because he did not

receive a copy of the Colorado Supreme Court order denying his certiorari petition until

May 24, 2018, and he filed his petition the next day. Circuit courts have consistently held

the federal habeas limitations period not to be subject to any sort of “notice rule.” Garcia,

351 F.3d at 472 (collecting cases). The statutory tolling period ends the day the state

supreme court denies review; not when the prisoner receives notice of that ruling or his

paper copy. Id. (“Section 2244(d)(2) clearly and unambiguously states that the federal

limitations period is tolled only during the time a properly filed state application for

collateral review is pending in state court.”).

       The only remaining question is whether Trimble can show he is entitled to

equitable tolling. To do so, he must demonstrate “(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, 560 U.S. 631, 649 (2010) (citation and quotations

                                             -4-
omitted). This doctrine applies only in “rare and exceptional circumstances.” Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations omitted). Rightly so; “[a]ny

invocation of equity to relieve the strict application of a statute of limitations must be

guarded and infrequent, lest circumstances of individualized hardship supplant the rules

of clearly drafted statutes.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)

(quotations omitted). Thus, Trimble’s burden is a heavy one. Equitable tolling applies

only if he “show[s] specific facts to support his claim of extraordinary circumstances and

due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quotations

omitted).

       In considering the application of equitable tolling to federal habeas petitions, we

have recognized “a prisoner’s lack of knowledge that state courts have reached a final

resolution of his case can provide grounds for equitable tolling if the prisoner has acted

diligently in the matter.” Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001)

(citing Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam), amended in part

by 223 F.3d 797 (5th Cir. 2000)); see also Diaz v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008)

(noting that the Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits “have concluded that

prolonged delay by a state court in sending notice of a ruling that completes exhaustion

of state court remedies can toll the [§ 2244(d)] limitations period” and collecting cases).

But “not in every case will a prisoner be entitled to equitable tolling until he receives

notice”—it depends on the facts of each case. Knight v. Schofield, 292 F.3d 709, 711

(11th Cir. 2002).

       Equitable tolling requires an extraordinary circumstance preventing timely filing.

                                             -5-
Holland, 560 U.S. at 649. A prolonged delay in the state court’s mailing of an order or in

the prisoner’s receipt thereof can be one such extraordinary circumstance. See, e.g.,

Woodward, 263 F.3d at 1142-43 (petitioner had not received notice twenty-five days after

state court issued its order)4; Knight, 292 F.3d at 711 (eighteen-month delayed notice);

Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002) (six-month delayed notice). “In

contrast, an ordinary de minimis delay incident to transmission of mail from court to

prisoner would not be an extraordinary circumstance warranting equitable tolling.” Earl

v. Fabian, 556 F.3d 717, 723 n.3 (8th Cir. 2009); see also Saunders v. Senkowski, 587

F.3d 543, 550 (2d Cir. 2009) (seven-day delay in notice “occasioned by the normal

course of the mail” is not “an ‘extraordinary’ circumstance for purposes of equitable



       4
         Woodward did not involve an untimely § 2254 petition. Rather, the issue of
equitable tolling arose when the petitioner attempted to add new claims to his § 2254
petition after the limitations period had expired. Woodward filed his § 2254 petition with
twenty days to spare. 263 F.3d at 1139. Five days later, he filed a state petition for post-
conviction relief raising sixteen new claims. Id. The petition was denied, and the New
Mexico Supreme Court denied certiorari review. Id. Thirty-eight days later, he sought to
amend his § 2254 petition to add the sixteen new claims. Id. The district judge decided
the new claims were time-barred because the statutory tolling period expired fifteen days
after the New Mexico Supreme Court denied certiorari. Id. Woodward, like Trimble,
claimed the statute of limitations should be equitably tolled until he received notice of the
denial. Id. at 1142. But the delay in Woodward was more substantial—at least a several
week delay. Id. at 1139, 1142 n.5. Woodward claimed he had not received notice of the
state court order as of February 20, 1998—if the statute of limitations were tolled until
that time, his amended federal petition would have been timely. Id. at 1142 n.5.
Ultimately, there was a more fundamental problem—we could not meaningfully review
the judge’s decision because he had simply overruled the argument without comment. Id.
at 1143. We therefore remanded the case to the district court to consider the petitioner’s
equitable tolling argument, directing the district court to “balance the equities of this case
on the record and, if necessary, determine when Woodward actually learned of the state
court’s disposition.” Id.


                                            -6-
tolling”). As the Fourth Circuit has explained, “[e]very person knows, or should know,

that it can take at least several days to receive mail even from within the same postal

jurisdiction, and he can, and may reasonably be required to, adjust his conduct

accordingly.” Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001). If this were not so,

applying equitable tolling because of an ordinary mailing period “effectively would be

nothing short of [an improper judicial extension of] the legislatively-prescribed one-year

statute of limitations.” Id. That we will not do.

       Here, there is no allegation or evidence of a prolonged delay on the part of the

Colorado Supreme Court in sending Trimble notice of its denial of review that would

constitute an extraordinary circumstance warranting equitable tolling. We are dealing

only with the brief interval between a prompt state court mailing and Trimble’s receipt of

that court’s order—he received his copy just three days after it was issued. That’s not

extraordinary by any measure. See id. (“Ordinary delivery time is not a ‘rarity,’ nor is the

charge of knowledge of such to the habeas petitioner ‘unconscionable.’”).

       Further, whether equitable tolling is appropriate in a given case depends not only

on the allegation of delayed notice, but also on whether the prisoner pursued his rights

with due diligence. Holland, 560 U.S. at 649. In this vein, Trimble contends requiring

him to file for federal habeas relief the same day the Colorado Supreme Court denied his

certiorari petition is “unfair” because he is a pro se prisoner. Aplt.’s Opening Br. & COA

Mot. at 8. To begin, this is factually inaccurate—the bar imposed by the statute of

limitations descended two days after the Colorado Supreme Court denied review. To

continue, liberal construction of pro se petitions has limits; petitioners are bound by

                                             -7-
federal procedural rules and, without more, a party’s ignorance of the law and pro se

status do not give rise to equitable tolling. See, e.g., Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000). In summary, pleas for equitable tolling require not only sensitivity

to the applicant’s immediate circumstances, but also a candid look at the totality of the

circumstances. Due diligence is a marathon, not merely a sprint to the finish line.

       Trimble had a full year to either file a federal habeas petition or to toll the

limitations period by seeking post-conviction relief in state court. Had he acted sooner on

the front end, he would have had more time on the back end. He has offered no

explanation for delaying his petition for state post-conviction relief until two days before

the window of opportunity closed. Without a compelling explanation for that delay (and

he offers none) we cannot credit him with acting diligently in pursuing his rights.5 “Were

it not for [his] own delay, the time needed for ordinary mail delivery almost certainly

would not have affected the timeliness of his habeas petition.” Spencer, 239 F.3d at 630.

Thus, absent evidence of a prolonged delay in notice of the state supreme court’s order

and without any explanation for his waiting 363 days to seek post-conviction relief in

state court, Trimble has failed to show equitable tolling applies—this is not, as our sibling

circuit put it, “a petitioner with a special call on equity.” Id. at 631.

       Nothing about the ultimate result of the district court’s order is incorrect or even



       5
         An applicant, late for a job interview, might seek to explain his tardiness by
blaming traffic. A sophisticated interviewer would want to know why the applicant had
not anticipated the problem and prepared accordingly. A natural disaster might satisfy as
a sufficient reason, a mere lack of proper prior planning would not.


                                              -8-
debatably incorrect. We DENY a COA and DISMISS this matter.

       The judge also denied Trimble’s motion to proceed on appeal without prepayment

of fees (in forma pauperis or ifp) because an appeal could not be taken in good faith. 28

U.S.C. § 1915(a)(3). Trimble has renewed his ifp request with this Court. We agree with

the district judge—this appeal is frivolous. But because we have fully addressed his COA

application, his renewed request to proceed ifp on appeal is DENIED AS MOOT.6



                                          Entered by the Court:



                                          Terrence L. O’Brien
                                          United States Circuit Judge




       6
        A matter is moot if “granting a present determination of the issues offered will
have [no] effect in the real world.” Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010) (quotations omitted).

                                           -9-
