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

                            FOR THE TENTH CIRCUIT                           March 22, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JAMES P. SHERARD,

      Petitioner - Appellant,

v.                                                         No. 15-4167
                                                   (D.C. No. 2:13-CV-00298-TC)
STATE OF UTAH,                                               (D. Utah)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      James Sherard, a Utah state prisoner, seeks a certificate of appealability (COA)

to challenge the district court’s denial of his habeas petition. The district court

concluded that Sherard filed his petition after the one-year limitation period had run.

See 28 U.S.C. § 2244(d). We agree with the district court’s conclusion. Exercising

jurisdiction under 28 U.S.C. § 1291 and § 2253(a), we deny Sherard’s request for a

COA and dismiss this appeal.

      In 1987, Sherard pleaded guilty to capital murder, aggravated burglary,

aggravated sexual assault, and theft. The state district court sentenced Sherard to life

on the capital-murder count, 5 years to life on the aggravated-burglary count, 15

      *
         This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
years to life on the aggravated-sexual-assault count, and 1 to 15 years on the theft

count, all to be served consecutively. Sherard did not appeal and did not immediately

seek post-conviction relief in state court.

      In 2007, under Utah R. Crim. P. 22(e), Sherard filed a motion to reduce an

illegal sentence. Sherard challenged the three non-murder convictions and sought to

withdraw his guilty pleas. Sherard also asserted that his counsel had been

constitutionally ineffective. On November 15, 2007, the state district court denied

Sherard’s motion, concluding that Sherard had not challenged the legality of his

sentence but instead was trying to challenge the underlying convictions. Sherard did

not appeal the district court’s decision.

      On April 29, 2013, Sherard filed in federal district court a habeas petition

under 28 U.S.C. § 2254. He asserted that his counsel had been constitutionally

ineffective and that the state court had upheld an illegal sentence. The district court

denied Sherard’s motion as untimely. It found that Sherard had not filed his habeas

petition within the required one-year time period after Sherard’s state-court

conviction became final. See 28 U.S.C. § 2244(d). The district court acknowledged

that Sherard’s 2007 motion to correct an illegal sentence tolled the habeas-filing

deadline but noted that Sherard’s time to file a habeas petition had already expired.

      Sherard now seeks to challenge the district court’s decision.1 But to do so, he

must obtain a COA. When a district court dismisses a habeas petition on procedural


      1
        Because Sherard proceeds pro se, we view his filings liberally. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But we will not serve as Sherard’s
                                              2
grounds, a petitioner 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.’” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.

2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      Sherard cannot satisfy this standard. Under the Antiterrorism and Effective

Death Penalty Act (AEDPA), a petitioner must file a habeas petition within one year

after the date the judgment becomes final or the time for seeking direct review

expires. 28 U.S.C. § 2244(d)(1)(A). Because Sherard’s convictions became final

before Congress enacted AEDPA, the one-year limitation period for a habeas petition

started on AEDPA’s effective date, April 24, 1996. Fisher v. Gibson, 262 F.3d 1135,

1143 (10th Cir. 2001). Thus, absent tolling, Sherard had to file his habeas petition on

or before April 24, 1997. Id.

      Sherard did not file his habeas petition until April 29, 2013, more than 16

years after his habeas deadline had passed. True, pursuing state post-conviction relief

tolls the one-year limitation period. See 28 U.S.C. § 2244(d)(2). Thus, the time in

2007 that Sherard’s motion to correct an illegal sentence was pending would

normally have tolled the one-year limitations period. But by 2007, Sherard was

already ten years late in filing his habeas petition, and his 2007 motion would not


attorney in constructing arguments and searching the record. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We have also “repeatedly
insisted that pro se parties follow the same rules of procedure that govern other
litigants.” Id. (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
                                          3
restart the one-year clock. See Fisher, 262 F.3d at 1142–43. And even if it would

have done so, Sherard waited another six years to file his petition.

      Sherard argues that that Utah law permitted him to file a timely habeas

application in 2013. He points to a Utah statute that permits convicted defendants to

seek post-conviction relief in state court when the conviction and sentence violate the

United States Constitution. See Utah Code. Ann. § 78B-9-104(1)(a)–(b). This statute

has no bearing on AEDPA’s one-year limitation period. Section 2244(d) applies to

Sherard’s federal habeas petition, notwithstanding any state-court relief that he is

entitled to seek. Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000).

      Nor is Sherard entitled to equitable tolling of the one-year limitation period.

See id. at 808 (holding that the one-year limitation period “is subject to equitable

tolling but only ‘in rare and exceptional circumstances’” (quoting Davis v. Johnson,

158 F.3d 806, 811 (5th Cir. 1998))). “Generally, a litigant seeking equitable tolling

bears the burden of establishing two elements: (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). Even if Sherard’s bare, conclusory

allegations that his counsel had been constitutionally ineffective or that Sherard was

prevented from filing a habeas petition because of physical or mental capacity

qualified as “some extraordinary circumstance,” Sherard has not alleged that he had

been pursuing his rights diligently. Id.




                                           4
      Reasonable jurists would not debate the district court’s concluding that

Sherard’s petition was untimely. We deny a COA and dismiss this appeal.


                                         Entered for the Court


                                         Gregory A. Phillips
                                         Circuit Judge




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