                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 16, 2020
                                                                Christopher M. Wolpert
                                TENTH CIRCUIT                       Clerk of Court



UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 19-1459
v.
                                              (D.C. Nos. 1:19-CV-02964-CMA &
                                                   1:11-CR-00406-CMA-3)
DUSTIN PFEIFFER,
                                                          (D. Colo.)
       Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.


      Movant, Dustin Allen Pfeiffer, seeks a certificate of appealability (“COA”)

so he can appeal the district court’s dismissal of the motion to vacate, set aside,

or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255

motion unless he first obtains a COA). Pfeiffer was convicted of one count of

aggravated sexual abuse of a federal prisoner, in violation of 18 U.S.C. §§ 2, 7,

2241(a)(1) and 2246(2)(C). His conviction was affirmed by this court on March

19, 2014. United States v. Shaw, 562 F. App’x 593 (10th Cir. 2014). Pfeiffer did

not seek review in the United States Supreme Court.
      Pfeiffer filed the instant § 2255 motion in the district court on October 28,

2019. In its order of dismissal, the district court concluded Pfeiffer’s motion was

filed more than one year after his conviction became final. See 28 U.S.C.

§ 2255(f) (setting forth a one-year statute of limitations for § 2255 motions). The

court further concluded Pfeiffer was not entitled to equitable tolling of the

applicable one-year limitations period. See Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000). Accordingly, the court dismissed Pfeiffer’s § 2255 motion as

untimely.

      To be entitled to a COA, Pfeiffer must show “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, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling of the limitations period for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).

      As he did before the district court, Pfeiffer argues he failed to file a § 2255

motion because his counsel told him there was no need to file one. The district

court addressed this argument, noting that even a habeas petitioner who


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established “sufficiently egregious misconduct” on the part of counsel “must also

show that he acted with reasonable diligence, and that the extraordinary

circumstances caused his petition to be untimely.” Fleming v. Evans, 481 F.3d

1249, 1256-57 (10th Cir. 2007) (quotation omitted). Applying that correct

standard, the district court concluded Pfeiffer failed to describe any steps he took

to diligently pursue his rights in the five-year period between the date his

conviction was affirmed and the date he filed his § 2255 motion. Pfeiffer’s

counseled appellate brief, likewise, contains no explanation of how Pfeiffer

diligently pursued his rights.

      Our review of the record demonstrates that the district court’s dismissal of

Pfeiffer’s § 2255 motion as untimely is not deserving of further proceedings or

subject to a different resolution on appeal. No jurist of reason could debate

whether the district court abused its discretion in refusing to equitably toll the

one-year limitations period.

      Accordingly, we deny Pfeiffer’s request for a COA and dismiss this

appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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