                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 8, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 13-2204
                                            (D.C. Nos. 2:13-CV-00225-WJ-GBW
 JOHN FRANK SHERIDAN,                            and 1:10-CR-01956-WJ-1)
                                                        (D. of N.M.)
              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



      John Frank Sheridan, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s decision denying

his habeas petition under 28 U.S.C. § 2255 as untimely. Exercising jurisdiction

under 28 U.S.C. §§ 1291 and 2253, we DENY a COA and DISMISS the appeal.

We do, however, grant Sheridan’s request to proceed in forma pauperis (IFP).




      *
         This order is not binding precedent except under the doctrines of law of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.
                                 I. Background

      In February 2011, Sheridan pleaded guilty to federal drug charges and was

sentenced to 100 months of imprisonment. He did not directly appeal, and the

one-year limitations period to file a habeas corpus petition came and went. But in

2013, Sheridan sought habeas relief under 28 U.S.C. § 2255, alleging several

constitutional claims.

      After Sheridan failed to directly respond to two orders to show cause why

his petition should not be dismissed as untimely, a magistrate judge recommended

that the district court dismiss his action with prejudice. Soon after the magistrate

judge’s recommendation issued, Sheridan filed a response to the second show

cause order and later filed objections to the magistrate judge’s recommendation.

To address the untimeliness of his petition, Sheridan set forth several reasons for

equitable and statutory tolling of the limitations period. Finding these grounds

for tolling unavailing, the district court adopted the recommendation of the

magistrate judge and dismissed the habeas petition as time barred.

                                 II. Discussion

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), “[t]he

issuance of a COA is a jurisdictional prerequisite to an appeal” from the district

court’s denial of habeas relief. United States v. Gonzalez, 596 F.3d 1228, 1241

(10th Cir. 2010). When, as here, the district court denies the habeas petition on

procedural grounds, a COA can issue only when the prisoner demonstrates that

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“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).

      Pursuant to § 2255, a federal prisoner has one year from the latest of

several dates to file a motion attacking his sentence. In most instances, the

applicable date is the day on which the conviction became final. 28 U.S.C.

§ 2255(f)(1); see also Clay v. United States, 537 U.S. 522, 524 (2003). Since

Sheridan’s conviction was finalized as of February 2011, his habeas petition was

untimely under this subsection.

      To overcome this deficiency, Sheridan attempts to avail himself of the

other subsections of § 2255(f), which provide means to statutorily toll the

limitations period. But none of these grounds for statutory tolling is available to

Sheridan based on the facts of his conviction and sentence. Nor can Sheridan

benefit from equitable tolling because, as the district court found, he has not

demonstrated either extraordinary circumstances that prevented timely filing or a

diligent pursuit of his rights. See Lawrence v. Florida, 549 U.S. 327, 336 (2007).

      A. Statutory Tolling

      Contrary to Sheridan’s assertions, § 2255(f)(3) is inapplicable to the

present case. That subsection effectively starts the limitations period under

§ 2255 from the date the Supreme Court recognizes (and makes retroactively

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applicable) a new constitutional right. Sheridan claims that two Supreme Court

cases from 2012—Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper,

132 S. Ct. 1376 (2012)—established a new constitutional right to effective

assistance of counsel during plea bargaining. To be sure, that right is an

important one, but it existed well before the Supreme Court reiterated its

constitutional gravity in Frye and Lafler. In re Graham, 714 F.3d 1181, 1183

(10th Cir. 2013) (“Frye and Lafler . . . do not establish a new rule of

constitutional law.”). Because neither Frye nor Lafler establishes a newly

recognized right in the first instance, we need not address whether the rules from

those cases have been made retroactively applicable.

      Sheridan also tries to make use of § 2255(f)(2), which extends the

limitations period to one year from the removal of a government-created

impediment in violation of the Constitution or a United States law that prevented

the prisoner from timely filing. Following Sheridan’s line of reasoning under this

subsection is challenging, but, in an effort to construe his filing liberally, see Hall

v. Bellmon, 935 F.2d 1106 (1991), we endeavor to consider its merits. Sheridan’s

argument stems from a news article released in August 2013, which purportedly

exposed a clandestine DEA operation that violated the rights of criminal

defendants by shielding evidence from pre-trial discovery. According to

Sheridan, this alleged “egregious pattern and practice of unconstitutional

conduct” resulted in his arrest. See Aplt. Br. at 15. Moreover, Sheridan alleges

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that he was aware of this unconstitutional practice prior to his plea and sought to

challenge it through a suppression hearing; however, his counsel “botched” it. Id.

at 16.

         Unfortunately for Sheridan, he is unable to explain how the alleged

unconstitutional practice prohibited him from accessing the court to “attack his

sentence or to challenge the conditions of his confinement,” which is required for

statutory tolling under § 2255(f)(2). Akins v. United States, 204 F.3d 1086, 1090

(11th Cir. 2000). In other words, the DEA’s practices did not impede him from

filing his habeas motion. Moreover, Sheridan’s claim that he was put on notice of

his constitutional claim when the news article was released in August 2013 is

belied by his brief, which asserts that he intended to raise this very issue during a

suppression hearing back in 2011. Equipped with knowledge of his alleged

constitutional claim by at least the time of his plea, Sheridan had no excuse for

delaying the filing of his habeas motion for almost two years. For these reasons,

the district court’s procedural ruling on the inapplicability of statutory tolling

cannot be reasonably questioned.

         B. Equitable Tolling

         “To be entitled to equitable tolling, [appellant] 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.” Lawrence, 549 U.S. at 336

(internal citation and quotation marks omitted). Equitable tolling is only

                                           -5-
appropriate in “rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000). Consideration of the second prong—extraordinary

circumstances—is sufficient to dispose of Sheridan’s claim. Indeed, we agree

with the thorough analysis of the district court, which demonstrates that

Sheridan’s allegations for deliberate misconduct and concealment by both his

counsel and the prosecution are completely inconsistent with the record. Quite

simply, there is no factual basis for a claim of “extraordinary circumstances” that

would warrant equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008) (finding that the inmate must meet his burden by showing specific facts

that demonstrate “extraordinary circumstances”). No reasonable jurist could

debate the district court’s correct conclusion regarding the absence of facts

necessary to establish a claim for equitable tolling.

                                 III. Conclusion

      We GRANT leave to proceed IFP, but DENY a COA and DISMISS

Sheridan’s appeal.

                                        ENTERED FOR THE COURT,

                                        Timothy M. Tymkovich
                                        Circuit Judge




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