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

                            FOR THE TENTH CIRCUIT                       November 21, 2017
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ONG VUE,

      Petitioner - Appellant,

v.                                                        No. 17-6213
                                                  (D.C. No. 5:17-CV-00857-HE)
JANET DOWLING, Warden, Dick Conner                        (W.D. Okla.)
Correctional Center,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

      Ong Vue, a state prisoner proceeding pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2254 application for a writ of habeas corpus. He also seeks leave to file a “Motion

to Certify Question of Law to Oklahoma Supreme Court” and a “Motion to Confer

Standing as a Member of a Peculiar Suspect Class.” Exercising jurisdiction under 28



      *
         This order is not binding precedent, except under the doctrines of law of the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.
       1
         Because Mr. Vue is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at
which we begin to serve as his advocate.”).
U.S.C. § 1291, we deny the COA and dismiss this matter. We also dismiss as moot

his request to file the motions.

                                     I. BACKGROUND

      In 1998, Mr. Vue pled no contest in Oklahoma state court to one count of

murder in the first degree and two counts of shooting with intent to kill. On June 1,

1998, he was sentenced to life in prison for the murder conviction and two 20-year

terms for the shooting with intent to kill convictions. Mr. Vue did not appeal these

convictions in state court. Instead, his trial counsel filed a motion to modify his

original sentence, which the Oklahoma state trial court granted in September of

1998.2 In July 2016, Mr. Vue sought post-conviction relief in state court. That

request was denied, and the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed.

      On August 12, 2016, Mr. Vue filed a 28 U.S.C. § 2241 petition in the United

States District Court for the Western District of Oklahoma seeking relief from an

immigration removal order and raising claims of ineffective assistance of counsel.

See Ong Vue v. Allbaugh, 682 F. App’x 636, 638-39 (10th Cir. 2017). The district

court construed Mr. Vue’s petition as a request for relief under § 2254 and dismissed



      2
         Under Mr. Vue’s original sentence, the 20-year terms were to run
concurrently with each other but consecutively to the life sentence. The Oklahoma
state trial court granted Mr. Vue’s request to modify the sentence, ordering that one
of the 20-year terms would run concurrently with the life sentence. See Ong Vue v.
Allbaugh, 682 F. App’x 636, 638 (10th Cir. 2017).


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it as unexhausted and time-barred. On review, this court denied a COA and

dismissed the appeal. Id. at 639.

       Mr. Vue later filed two applications to bring a successive § 2254 claim based

on ineffective assistance of counsel. This court denied his first request, holding that

Mr. Vue had not shown he was relying on “a new rule of constitutional law” or

“newly discovered evidence.” See Order dated June 1, 2017 at 2 (17-6124).

Regarding his second request, we found that Mr. Vue was not required to obtain

circuit authorization to challenge his state convictions under § 2254 because the

district court had failed to provide him adequate notification before construing his

§ 2241 petition as, in part, a first § 2254 application. See Order dated July 31, 2017

at 2 (17-6161). This court thus denied his request for authorization as unnecessary

and permitted him to file a § 2254 application in district court to challenge his

convictions. See id. at 1.

       A magistrate judge issued a report and recommendation (“R & R”) concluding

that Mr. Vue’s habeas application was untimely under the one-year statute of

limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and that

neither statutory nor equitable tolling was warranted. The district court adopted the

R & R and dismissed Mr. Vue’s habeas application as untimely. It issued separate

orders denying Mr. Vue leave to proceed in forma pauperis (“ifp”) on appeal and

declining to grant a COA. After the district court denied ifp, Mr. Vue paid the filing

fee in full.



                                           3
                                       II. DISCUSSION

       Mr. Vue contends he is entitled to equitable tolling because his attorney failed

to pursue a direct appeal of his 1998 Oklahoma state convictions. We conclude

under the alleged facts that he is not entitled to equitable tolling for 17 years—the

time that elapsed between when his conviction became final and when he first sought

federal habeas relief. The district court did not abuse its discretion in denying

equitable tolling, reasonable jurists would not disagree, and a COA is unwarranted.

                                 A. Legal Background

1. Certificate of Appealability

       Mr. Vue may not appeal the district court’s denial of his § 2254 application

without a COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). To receive a COA, an applicant must make “a substantial showing of

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

court denied Mr. Vue’s habeas application on procedural grounds “without reaching

the prisoner’s underlying constitutional claim,” a COA cannot issue unless Mr. Vue

shows both (1) “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right,” and (2) “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); accord Dulworth v. Jones,

496 F.3d 1133, 1137 (10th Cir. 2007). Because we may “resolve the issue whose

answer is more apparent from the record and arguments,” Slack, 529 U.S. at 485, we



                                             4
start and end our discussion with the second ground concerning the district court’s

procedural ruling.

2. Statute of Limitations

         Mr. Vue challenges the district court’s conclusion that his claim was

procedurally barred and that equitable tolling was unwarranted. “[W]e review the

district court’s decision on equitable tolling of the limitation period for an abuse of

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

         Under AEDPA, state prisoners have one year from the day their state court

conviction becomes final to seek habeas relief. 28 U.S.C. § 2244(d)(1). As relevant

here, a state conviction is final either when direct review has concluded or when the

period during which direct review can be sought has expired. Id. To qualify for

equitable tolling, an applicant must show “(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) (quotations

omitted).

         Attorney negligence can warrant equitable tolling in “extraordinary

instance[s]” when the conduct constitutes “far more than ‘garden variety’ or

‘excusable neglect.’” Id. at 652. The petitioner bears the burden of demonstrating

that equitable tolling is appropriate. Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998).




                                            5
                                        B. Analysis

       Mr. Vue’s conviction became final in June 1998—ten days after his conviction

was entered and the date on which his opportunity to seek direct review ended. See

ROA at 148; see also Okla. Stat. tit. 22, § 1051; Rules of Oklahoma Court of

Criminal Appeals 4.2. The one-year period for filing a habeas application ended in

June 1999. He filed his habeas application 17 years later—long after AEDPA’s one-

year statute of limitations had expired. Thus, the district court was correct to

conclude that Mr. Vue’s application is time-barred unless he can show he is entitled

to tolling of the limitations period.

       Mr. Vue contends equitable tolling is warranted based on his attorney’s failure

to (1) file a motion to withdraw his plea or (2) file a timely appeal. But he fails to

provide sufficient evidence that his lawyer’s purported negligence prevented him

from filing a habeas application within the one-year limitations period.

       Mr. Vue offers no corroboration—other than his own affidavit—of his claim

that a May 29, 1998 conversation with his attorney led him to believe that she would

pursue an appeal. He claims he believed the attorney had perfected his appeal, but he

provides no explanation for his failure to follow up on the matter for the 17 years that

passed between the time his conviction became final and the time he sought habeas

relief in federal court. Even if Mr. Vue’s version of the events is correct, he has

failed to demonstrate the diligence necessary for equitable tolling to apply or that the

district court abused its discretion in denying equitable tolling. Accordingly, he



                                            6
cannot show that reasonable jurists would differ over whether the district court

properly dismissed his habeas application.

                                    III. CONCLUSION

      Mr. Vue filed his § 2254 application long after AEDPA’s one-year statute of

limitations expired, and he has not demonstrated that equitable tolling is warranted or

that reasonable jurists would debate whether the district court abused its discretion.

We therefore deny his request for a COA and dismiss his appeal. We also dismiss as

moot his “Motion to Certify Question of Law to Oklahoma Supreme Court” and the

“Motion to Confer Standing as a Member of a Peculiar Suspect Class.”


                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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