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

                            FOR THE TENTH CIRCUIT                        August 28, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GEOFFREY DEL RANTZ,

             Petitioner-Appellant,

v.                                                         No. 13-1499
                                                  (D.C. No. 1:13-CV-00883-LTB)
STEVE HARTLEY; THE ATTORNEY                                  (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

             Respondents-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.


      Geoffrey Del Rantz, a pro se Colorado state prisoner, seeks a certificate of

appealability (COA) to appeal from the district court’s order denying his application

under 28 U.S.C. § 2254. We deny a COA and dismiss the appeal.1


*
       This order is not binding precedent, except under the doctrines of law of the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
       Mr. Rantz’s notice of appeal from the district court’s judgment was filed two
days after the deadline. See Fed. R. App. P. 4(a)(1)(A) (stating that a notice of
appeal in civil cases generally “must be filed with the district clerk within 30 days
after entry of the judgment or order appealed from”). Nevertheless, when prompted
by this court, Mr. Rantz supplied proof, in the form of a Department of Corrections’
money withdrawal ticket and an inmate pass to the mailroom, indicating that he
placed his notice of appeal in the prison’s legal mail system within the 30-day appeal
                                                                              (continued)
                                     BACKGROUND

      In 2002 “[a] jury convicted [Mr. Rantz] of four counts of sexual assault on a

child by one in a position of trust, two counts of sexual assault on a child, theft,

contributing to the delinquency of a minor, criminal impersonation, false reporting,

and practicing psychotherapy without a license.” R. at 419. He received “an

indeterminate forty-year sentence.” Id. Mr. Rantz appealed and filed motions for a

new trial and for postconviction relief under Colo. R. Crim. P. 35(c). The Colorado

Court of Appeals remanded the case to the trial court, where Mr. Rantz’s motions

were denied. The court of appeals then affirmed Mr. Rantz’s conviction and the

denial of his motions, but vacated his sentence and remanded for resentencing

because defense “counsel had an actual conflict of interest that adversely affected

their performance at the sentencing hearing.” R. at 345.

      At resentencing in February 2007, the trial “[c]ourt reimposed the sentence it

had originally imposed.” Id. at 263. Counsel for Mr. Rantz did not appeal, and the

time for doing so expired on March 26, 2007.




window. The notice of appeal is therefore timely under the prison mailbox rule. See
Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005) (“[A]n inmate must establish
timely filing under the mailbox rule by either (1) alleging and proving that he or she
made timely use of the prison’s legal mail system if a satisfactory system is available,
or (2) if a legal system is not available, then by timely use of the prison’s regular
mail system in combination with a notarized statement or a declaration under penalty
of perjury of the date on which the documents were given to prison authorities and
attesting that postage was prepaid.”).

                                           -2-
      In June 2007 counsel sought an extension of time to seek sentence

reconsideration. On September 27, 2007, Mr. Rantz filed a pro se Rule 35(c) motion.

A docket entry indicates that four days later, the state trial court denied the motion,

explaining that “[b]ecause [Mr. Rantz] [i]s [r]epresented [b]y [c]ounsel, [t]he [c]ourt

[w]ill [t]ake [n]o [a]ction [o]n [the] [m]otion[ ].” R. at 168.

      Mr. Rantz’s counsel then filed a motion to withdraw, which was apparently

granted on October 24. In November, Mr. Rantz moved pro se to disqualify the trial

court and to obtain appointed counsel. The trial court denied the disqualification

motion several days after it was filed and the appointment motion several months

later, in February 2008.

      Over two years passed before Mr. Rantz again sought relief in the trial court.

On June 17, 2010, he filed pro se motions for Rule 35(c) relief and “[f]or [r]eview

[o]f [f]ilings.” R. at 167. The trial court denied the Rule 35(c) motion and the

Colorado Court of Appeals affirmed. The Colorado Supreme Court denied his

petition for a writ of certiorari on February 19, 2013.

      On April 5, 2013, Mr. Rantz filed in the federal district court his application

for § 2254 relief, challenging numerous aspects of the trial, appellate, and

postconviction proceedings. The district court concluded that Mr. Rantz’s challenges

to the state postconviction proceedings did not present a cognizable federal issue. As

to the remainder of the challenges, the district court found that they were untimely.

It concluded that the one-year limitations period began running on March 26, 2007,


                                          -3-
when the time to appeal the resentencing expired. And the limitations period was not

tolled, the court ruled, by Mr. Rantz’s second Rule 35(c) motion, which was filed pro

se on September 27, 2007. But the court further ruled that even if that motion was

properly filed and did toll the limitations period, Mr. Rantz abandoned it by taking

“no further action to obtain a ruling on that motion until June 17, 2010, when he filed

the third Rule 35(c) motion and a motion for review of filings.” R. at 588. That

abandonment, it held, occurred “no later than September 2008, which is one year

after it was filed and more than six months after Mr. Rantz’s motion for appointment

of counsel had been denied.” R. at 589. Any tolling from the second Rule 35(c)

motion therefore was not enough to save Mr. Rantz. Even with the one-year

limitations period running from September 2008, it expired before he filed his June

2010 Rule 35(c) motion. Finally, the district court rejected Mr. Rantz’s attempt to

equitably toll the limitations period on the bases that he was mentally incompetent

and that the state trial court allowed his second Rule 35(c) motion to languish.

                                     DISCUSSION

                               I. Standards of Review

      The granting of a COA is a jurisdictional prerequisite to Mr. Rantz’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Mr. Rantz must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This is accomplished when

an applicant shows “that reasonable jurists could debate whether (or, for that matter,


                                         -4-
agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). And

when a district court denies a petition on procedural grounds, a COA may issue only

if the prisoner additionally shows that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. We liberally

construe Mr. Rantz’s pro se request for a COA. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972).

                                     II. Timeliness

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

establishes a one-year limitations period for state prisoners to seek federal habeas

relief, subject to several exceptions. See 28 U.S.C. § 2244(d). In the ordinary case,

the clock starts running when the state-court judgment becomes final on direct review

or on the expiration of the time for seeking such review. See id. § 2244(d)(1)(A).

      The statute delays commencement of the limitations period when (1) state

action unlawfully impeded the prisoner from filing his habeas application; (2) the

prisoner asserts a constitutional right newly recognized by the Supreme Court and

made retroactive on collateral review; or (3) the factual predicate for the prisoner’s

claim could not previously have been discovered through due diligence. See

id. § 2244(d)(1)(B)-(D). It also tolls the limitations period during the pendency of a

properly filed application for state collateral relief. See id. § 2244(d)(2).


                                           -5-
      Mr. Rantz does not contest the district court’s conclusion that the one-year

limitations period began on March 27, 2007 (after the time for appealing the

resentencing expired). His primary contention is that the second Rule 35(c) motion,

filed on September 27, 2007, stopped the limitations clock.

      Mr. Rantz first challenges the district court’s ruling that the second Rule 35(c)

motion was not properly filed because Mr. Rantz was represented by counsel.2 A

state application for postconviction relief “is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and rules governing filings.

These usually prescribe, for example, the form of the document, the time limits upon

its delivery, the court and office in which it must be lodged, and the requisite filing

fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted).

      In Colorado, “[a] defendant . . . does not have a right to demand ‘hybrid’ or

mixed representation by both counsel and the defendant, although a trial court in its

discretion may permit this.” People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). Thus,

a Colorado court “may ignore” filings made by a pro se defendant who is represented

by counsel. People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010) (observing that a

court “may ignore a pro se ‘Motion for Writ of Habeas Corpus’ that is filed by a

represented defendant”). Colorado’s approach is not unique. See, e.g., State v.

Navarro, 243 P.3d 519, 520 (Utah Ct. App. 2010) (“Because Navarro was
2
      Mr. Rantz also challenges the abandonment ruling by the district court. We
need not address the issue, but he is probably correct. See Fisher v. Raemisch,
No. 13-1144, 2014 WL 3827163, at *4 (10th Cir. Aug. 5, 2014).


                                          -6-
represented by counsel when he filed his pro se letter, the district court did not err by

failing to consider the pro se letter as a properly filed motion to withdraw his guilty

plea.”); Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (“[A] trial

court is free to disregard any pro se motions presented by a defendant who is

represented by counsel.”); Commonwealth v. Rodgers, 862 N.E.2d 727, 732

(Mass. 2007) (“The defendant acknowledges that, while he was still represented by

counsel, the court was entitled to ignore such pro se filings.”).

      Here, when Mr. Rantz filed his pro se Rule 35(c) motion, his attorney of

record had yet to withdraw from the case. Accordingly, the trial court ruled four

days after the motion was filed that it would not act on the motion. We therefore

agree with the district court that the September 27, 2007 Rule 35(c) motion had no

tolling effect. See Munchinski v. Wilson, 807 F. Supp. 2d 242, 264-65 (W.D. Pa.

2011) (dismissal of defendant’s pro se postconviction petition because defendant had

counsel meant that the “petition was not ‘properly filed’ under the meaning of the

AEDPA so as to stop the clock on the statute of limitations”), aff’d, 694 F.3d 308

(3d Cir. 2012). At the most, the motion only temporarily tolled the limitations period

until the court clearly resolved not to accept the motion, and that decision was not

appealed. The time for appeal expired 45 days after the court ruled, see Colo. App.

R. 4(a) (2007), so the tolling ended on November 15, 2007. Because Mr. Rantz filed

no other state pleading for postconviction relief until June 2010, AEDPA’s one-year

limitations period clearly expired.


                                          -7-
      Next, Mr. Rantz challenges the district court’s refusal to equitably toll the

limitations period. “To be entitled to equitable tolling, [Mr. Rantz] 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 v. Florida,

549 U.S. 327, 336 (2007) (internal quotation marks omitted). Equitable tolling is

only appropriate in “rare and exceptional circumstances.” Gibson, 232 F.3d at 808

(internal quotation marks omitted).

      Mr. Rantz claims that equitable tolling is appropriate because the trial court

“took no action [on his second Rule 35(c) motion] for the two year period addressed

by the District Court,” and because he is mentally incompetent. Application for COA

at 14. The district court rejected Mr. Rantz’s claim of judicial inaction, and we do so

as well. As discussed above, the trial court clearly announced that it would take no

action on the pro se motion. Mr. Rantz did not seek reconsideration or clarification,

he did not appeal, and he did not refile the motion after his counsel withdrew on the

record. Instead, he waited over two years, until June 2010, to file another Rule 35(c)

motion and a motion for review of filings. As the district court aptly observed, “it

was Mr. Rantz who failed to take action.” R. at 591. Equitable tolling on the basis

of purported judicial inaction is not available here.

      As for Mr. Rantz’s claim that his mental incapacity warrants tolling, federal

courts equitably toll the limitations period only when there is a severe or profound

mental impairment, such as that resulting in institutionalization or adjudged mental


                                          -8-
incompetence. See Fisher v. Gibson, 262 F.3d 1135, 1143, 1145 (10th Cir. 2001)

(petitioner’s claims of mental incompetence failed to “reach the required

extraordinariness as to warrant equitable tolling”); Bolarinwa v. Williams, 593 F.3d

226, 232 (2d Cir. 2010); United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004);

Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010); cf. Biester v. Midwest

Health Servs., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) (declining to equitably toll

the Title VII limitations period based on plaintiff’s claim of mental illness because he

failed to allege exceptional circumstances, like being “adjudged incompetent or

institutionalized”). In other words, “mental impairment is not per se a reason to toll

a statute of limitations.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009).

Indeed, “this circuit has yet to apply equitable tolling on the basis of mental

incapacity.” McCall v. Wyo. Att’y Gen., 339 F. App’x 848, 850 (10th Cir. 2009);

see, e.g., O’Bryant v. Okla., No. 14-6073, 2014 WL 2853773, at *4 (10th Cir. June

24, 2014); Saenz-Jurado v. People of Colo., 329 F. App’x 197, 199 (10th Cir. 2009);

Hendricks v. Howard, 284 F. App’x 590, 590-91 (10th Cir. 2008); Brown v.

Dinwiddie, 280 F. App’x 713, 715 (10th Cir. 2008).

      To meet his burden, Mr. Rantz states that he suffers from rapid cycling bipolar

disorder, generalized anxiety disorder, posttraumatic stress disorder, and “[m]ood

[d]isruption” due to hypothyroidism and vitamin B deficiency. Application for COA

at 16. He claims that because of his mental disorders, “all of his previous legal work

was done by hired counsel, family or by jailhouse lawyers.” Id. at 17. Further,


                                          -9-
according to Mr. Rantz, the Colorado Department of Corrections “has classified

[him] as a P-3(c), which is the highest form of mental disability in the prison

population.” Id. at 14. He “has been on . . . numerous medications to treat these

disorders for many years,” and “[t]he medications have varying negative effects on

him.” Id. at 17.

      The district court determined for three reasons that Mr. Rantz’s mental

conditions did not stand in the way of his timely seeking federal habeas relief. First,

Mr. Rantz had the assistance of a retained attorney for a period of time following the

trial court’s rejection of his second Rule 35(c) motion in October 2007 and preceding

the filing of his third Rule 35(c) motion in June 2010. Second, Mr. Rantz had the

assistance of his family and other inmates in pursuing state postconviction relief.

And third, Mr. Rantz was able to litigate the third Rule 35(c) motion from its filing in

June 2010 through the conclusion of the state appellate process in February 2013

before filing his § 2254 application in April 2013.

      We conclude that the district court’s determination is not debatable. While

Mr. Rantz undoubtedly suffers from mental disorders and the side effects of various

treatment medications, those problems have not, as the district court noted, stood in

the way of a timely habeas filing. In other words, Mr. Rantz has not shown that his

mental disorders were the cause of the untimeliness. See Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000) (equitable tolling requires a showing “that the failure to

timely file was caused by extraordinary circumstances beyond his control”); Ross v.


                                         - 10 -
Varano, 712 F.3d 784, 803 (3d Cir. 2013) (“[F]or a petitioner to obtain [equitable

tolling] relief there must be a causal connection, or nexus, between the extraordinary

circumstances he faced and the petitioner’s failure to file a timely federal petition.”);

Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (“To secure equitable tolling, it is

not enough for a party to show that he experienced extraordinary circumstances. He

must further demonstrate that those circumstances caused him to miss the original

filing deadline.”); Bills, 628 F.3d at 1100 (courts must “consider[ ] whether the

petitioner’s impairment was a but-for cause of any delay”). Consequently, equitable

tolling is not available.

                                     CONCLUSION

       We deny a COA and dismiss this appeal. We grant Mr. Rantz’s motion to

proceed on appeal in forma pauperis.


                                                   Entered for the Court



                                                   ELISABETH A. SHUMAKER, Clerk




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