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

                           FOR THE TENTH CIRCUIT                         May 19, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JEROME LYNN HOLLY,

             Petitioner - Appellant,

v.                                                         No. 14-2184
                                              (D.C. No. 1:12-CV-00952-MCA-WPL)
ERASMO BRAVO,                                               (D. N.M.)

             Respondent - Appellee.


                            ORDER AND JUDGMENT*


Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


      Jerome Lynn Holly was convicted of first-degree murder and attempted

first-degree murder following a jury trial in New Mexico. On January 29, 2009, the

New Mexico Supreme Court affirmed his convictions, and he did not seek further

direct review. He then waited nearly two years to file two successive state habeas

petitions challenging his convictions. After these state petitions were denied, he

eventually filed the federal habeas petition underlying this appeal. The magistrate

*
      After examining the briefing and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
judge noted the facial untimeliness of the petition, but granted Mr. Holly a hearing

on equitable tolling and appointed the federal public defender to proceed on his

behalf.1 The district court ultimately adopted the magistrate judge’s recommendation

to deny equitable tolling and dismiss the petition as barred by the one-year deadline

in 28 U.S.C. § 2244(d). Seeking to appeal that determination, Mr. Holly’s counsel

has submitted a brief including a request for a certificate of appealability (COA)

pursuant to 28 U.S.C. § 2253(c). We grant a COA and, upon full consideration of the

arguments in Mr. Holly’s appeal brief, affirm the order of the district court.

      Because the district court’s ruling rested on procedural grounds, Mr. Holly

must show 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). In applying this standard, we are mindful that

“a COA does not require a showing that the appeal will succeed.” Miller-El v.

Cockrell, 537 U.S. 322, 337 (2003). While the matter is close, we conclude that the

issue of equitable tolling here is “‘adequate to deserve encouragement to proceed

1
       The magistrate judge calculated that the one-year limitations period for
commencing federal habeas proceedings expired on May 14, 2010. Mr. Holly does
not dispute that determination. Because this deadline passed some nineteen months
before he first filed for state habeas relief, the provision in § 2244(d)(2) tolling the
limitations period during the pendency of an application for state post-conviction or
other collateral review never came into play. See Clark v. Oklahoma, 468 F.3d 711,
714 (10th Cir. 2006). Thus, Mr. Holly must rely on equitable tolling principles to
save his belatedly filed habeas petition.


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further’” under the Slack standard. Id. at 336 (quoting Slack, 529 U.S. at 484). We

therefore grant a COA and proceed to the merits of the appeal in light of Mr. Holly’s

appellate brief.2

       “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstances

stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649

(2010) (internal quotation marks omitted). Thus, “equitable tolling is appropriate

only in rare and exceptional circumstances.” Sigala v. Bravo, 656 F.3d 1125, 1128

(10th Cir. 2011) (internal quotation marks omitted). The magistrate judge discussed

at length the circumstances surrounding Mr. Holly’s delay and his unpersuasive

attempt to excuse that delay by attributing it all to the inaction of one of his attorneys

rather than his own failure to pursue his rights diligently. Without repeating that

entire discussion, we set out those salient facts that convince us of the correctness of

the district court’s decision.

       Mr. Holly hired attorney Gary Hill to represent him through trial, appeal, and

any subsequent proceedings. Mr. Hill contracted with another attorney to handle the

trial, did not appear for sentencing, and allowed a public defender to handle the

appeal. In his federal habeas petition, Mr. Holly gave a very specific excuse for his

years of delay in challenging his conviction following his appeal: Mr. Hill told him
2
       Because we conclude that the arguments advanced by Mr. Holly ultimately do
not warrant appellate relief, we have not ordered the respondent to file an answer
brief.


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he had filed a motion for rehearing, after which Mr. Hill failed to answer or return his

calls. Mr. Holly’s testimony at the evidentiary hearing was different and much more

vague. He stated that as a general matter Mr. Hill never explained what he was going

to do and that he (Mr. Holly) never asked for such explanations. Mr. Hill just gave

broad assurances that he would get Mr. Holly released, possibly by hiring yet another

attorney to work on his case. As for the rehearing motion in particular, Mr. Holly

testified that his public defender had mentioned possibly considering such a motion

and that Mr. Hill had led him to believe that Mr. Hill was going to call the public

defender to discuss that. The public defender, who testified at the evidentiary

hearing, denied making any comments about a possible rehearing motion—a point

supported by contemporaneous notes the public defender kept. In any event, after the

time for rehearing passed and the appellate mandate issued, the public defender sent a

letter to Mr. Holly informing him that with the issuance of the mandate the appeal

was officially over and that state and federal habeas proceedings were his remaining

means of challenging his conviction.

      The public defender also explained to Mr. Holly the time limits on seeking

federal habeas relief. Yet, as far as Mr. Holly’s testimony indicates, Mr. Holly never

discussed these time limits with Mr. Hill, never directed Mr. Hill to file a state or

federal habeas petition, was never told that Mr. Hill had filed a petition, and indeed

never even asked whether Mr. Hill had filed or would file a petition. Nor did

Mr. Holly contact the courts to make any inquiries in this regard or otherwise take


                                          -4-
steps to ensure specifically that Mr. Hill was acting to preserve his right to file for

habeas relief. He simply relied on vague assurances that Mr. Hill was in some

unspecified fashion working on his case. Over time Mr. Hill became more and more

reclusive. Eventually, some two and a half years after his conviction had been

affirmed on appeal, Mr. Holly began pursuing state habeas relief himself. Following

the failure of his second state petition, he belatedly commenced the instant federal

habeas proceeding.

       Mr. Holly contends that these circumstances warrant equitable tolling of the

habeas limitations period, citing a number of cases in which equitable tolling was

deemed warranted, or at least arguably warranted, based on counsel’s failure to

timely pursue postconviction remedies. But the circumstances noted above sharply

distinguish Mr. Holly’s situation from those in the cited cases, where counsel failed

to pursue particular remedies to preserve habeas rights as specifically promised to

petitioners who made affirmative efforts to see that those specific promises were kept.

Cf. Holland, 560 U.S. at 636-43; Fleming, 481 F.3d at 1255-57; Doe v. Busby,

661 F.3d 1001, 1009-10, 1012-13 (9th Cir. 2011); United States v. Martin, 408 F.3d

1089, 1090-91 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003);

United States v. Wynn, 292 F.3d 226, 228-29 (5th Cir. 2002). Mr. Holly emphasizes

that he remained in general contact with Mr. Hill, in part through two mutual friends,

but the vagary of his communication with Mr. Hill—whom he (and the friends)




                                           -5-
deliberately avoided asking specific questions—undercuts its import for purposes of

demonstrating diligence and reasonable reliance.

      Mr. Holly characterizes Mr. Hill as a friend and contends that this justified his

inattentive reliance on Mr. Hill. He cites no authority holding that misplaced or

undue professional reliance may be excused for such personal reasons. In any event,

he did not make this argument in his objections to the magistrate judge’s

recommendation and we deem the point forfeited under our firm waiver rule. See

Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir. 2009). See also United States v.

Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (adhering to general waiver rules in

deciding request for COA). Mr. Holly also contends that counsel’s failure to provide

his case file when he decided to pursue state habeas relief is a separate act of

unprofessionalism lending additional support to his argument for equitable tolling.

This point was likewise omitted from his objections to the magistrate judge’s

recommendation. We further note that, given the expiration of the federal habeas

limitations period well before Mr. Holly began work on his state habeas petition,

counsel’s failure to turn over the file did not adversely affect, much less prevent, his

ability to timely file the habeas petition, as required by Holland, 560 U.S. at 649.

      The request for COA is granted and the order of the district court is affirmed.

                                                Entered for the Court


                                                John C. Porfilio
                                                Circuit Judge


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