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

                             FOR THE TENTH CIRCUIT                               June 27, 2019
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 JEFFREY RAMIREZ,

       Petitioner - Appellant,

 v.                                                           No. 18-6127
                                                      (D.C. No. 5:17-CV-00838-HE)
 JOE ALLBAUGH, Director of the                                (W.D. Okla.)
 Oklahoma Department of Corrections,

       Respondent - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT
                         _________________________________

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
                  _________________________________

       Mr. Jeffrey Ramirez, an Oklahoma state prisoner, appeals the district court’s

judgment dismissing as untimely his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. A judge of this court granted a certificate of appealability (COA) on the issues

raised in Mr. Ramirez’s pro se combined opening brief and application for a COA, which

concern whether tolling applies to the period in which he had to file his § 2254 petition.




       
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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.
We then appointed counsel for Mr. Ramirez and obtained additional briefing. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    Procedural Background

      On October 1, 2013, Mr. Ramirez was sentenced to life imprisonment for a

first-degree murder conviction in Oklahoma County District Court (OCDC). The

Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction and sentence on

December 5, 2014. Mr. Ramirez did not file a certiorari petition in the United States

Supreme Court.

      On December 10, 2014, Mr. Ramirez filed a pro se motion for a suspended

sentence in the OCDC. The OCDC denied that motion on August 17, 2015. On

November 5, 2015, Mr. Ramirez filed a twenty-three-page pro se application for

post-conviction relief (First APCR) in the OCDC. On November 17, 2015, the OCDC

struck the First APCR because it exceeded the twenty-page limitation set forth in local

Rule 37(B) without the court’s prior permission. In relevant part, local Rule 37(B)

provides:

      All motions, applications and responses thereto, including briefs, . . . shall
      not exceed twenty (20) pages in length, excluding exhibits, without prior
      permission of the assigned judge. Reply briefs shall be limited to five (5)
      pages in length. Page limitations herein exclude only the cover, index,
      appendix, signature line and accompanying information identifying
      attorneys and parties, and certificate of service. No further briefs shall be
      filed without prior permission of the assigned judge.
Official Ct. R. of the Seventh Jud. and Twenty-Sixth Admin. Dists. Comprised of Okla.

and Can. Ctys., Rule 37(B).



                                             2
       On November 30, 2015, Mr. Ramirez filed a pro se motion to file an APCR that

exceeded the page limitation (Overlength Motion). More than eight months later, on

August 6, 2016, the OCDC denied the Overlength Motion. On August 25, 2016,

Mr. Ramirez filed an APCR that complied with the twenty-page limit (Second APCR).

The OCDC denied the Second APCR on February 17, 2017, and the OCCA affirmed that

ruling on July 7, 2017.

       On August 4, 2017, Mr. Ramirez filed a pro se § 2254 petition in the United States

District Court for the Western District of Oklahoma raising six grounds for relief,

including a claim of actual innocence. The court referred the petition to a magistrate

judge for initial proceedings. The magistrate judge issued a report recommending that

the petition should be dismissed as untimely because it was filed outside the one-year

limitations period set out in 28 U.S.C. § 2244(d)(1), which, in Mr. Ramirez’s case, began

on “the date on which [Mr. Ramirez’s state court] judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review,” id.

§ 2244(d)(1)(A). The magistrate judge concluded that under § 2244(d)(2), which stops

the running of the limitations period during the pendency of any “properly filed

application for State post-conviction or other collateral review,”1 Mr. Ramirez’s motion

for a suspended sentence extended the filing deadline from March 7, 2016 to August 20,



       1
         In full, § 2244(d)(2) provides: “The time during which a properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.”

                                             3
2016.2 But the magistrate judge determined that neither of the APCRs triggered

§ 2244(d)(2) tolling because the First APCR was not “properly filed,” as required by

§ 2244(d)(2), and the Second APCR was filed after the extended limitations period

expired on August 20, 2016. The magistrate judge found that equitable tolling did not

apply because after the defective First APCR, Mr. Ramirez waited approximately nine

months to file another APCR. Finally, the magistrate judge concluded that an equitable

exception to the limitations period for a claim of actual innocence did not apply.

       After Mr. Ramirez filed objections to the report and recommendation, the district

court declined to adopt it. The court determined that Mr. Ramirez’s motion for a

suspended sentence and his Second APCR triggered § 2244(d)(2) tolling, and equitable

tolling applied to the intervening time during which his Overlength Motion was pending

before the OCDC. The court concluded that equitable tolling applied because, as a pro se

litigant, Mr. Ramirez could have reasonably viewed his Overlength Motion “as

something that needed to be resolved before further filings or proceedings would be

necessary or appropriate,” and the OCDC’s delay in ruling on that motion was beyond

Mr. Ramirez’s control. R. at 84. The court further observed that once the OCDC ruled

on that motion, Mr. Ramirez promptly filed his Second APCR. The combined tolling

effect, the court concluded, rendered the § 2254 petition timely filed. Accordingly, the

court referred the matter back to the magistrate judge.




       2
        The parties agree that minor adjustments of this date to account for weekends or
holidays do not affect the outcome of this appeal. We therefore refer to this date.
                                             4
       In further proceedings before the magistrate judge, the State filed a motion to

dismiss the § 2254 petition, arguing that it was time-barred. The magistrate judge issued

a supplemental report with a recommendation that the district court reconsider its

timeliness ruling in light of the State’s motion because the State had never received

service of the first recommendation, Mr. Ramirez’s objections to it, or the district court’s

order concluding the petition was timely filed. The magistrate judge also recommended

granting the motion to dismiss the petition as untimely, agreeing with the State on what

she viewed as the dispositive issue—that equitable tolling did not apply to the time period

during which the Overlength Motion was pending. Applying, among other cases, Loftis

v. Chrisman, 812 F.3d 1268 (10th Cir. 2016), which we discuss more fully below, the

magistrate judge determined that the OCDC’s delay in ruling on the Overlength Motion

was not an uncontrollable circumstance that prevented Mr. Ramirez from filing an APCR

that complied with the page limitation. The magistrate judge reasoned that Mr. Ramirez

filed the nonconforming First APCR “without adequately informing himself of the

applicable rule governing page limitations or without regard for that rule if he was, in

fact, aware of it.” R. at 219. She then faulted Mr. Ramirez for filing the Overlength

Motion and then sitting back for nearly nine months “before filing what he could have

always filed: a conforming [APCR].” Id. The magistrate judge further explained that

even if Mr. Ramirez thought his Overlength Motion had to be resolved before he could

file an APCR that complied with the twenty-page limit, the OCDC, despite its delay in

ruling on that motion, had done nothing to “lead him to that erroneous conclusion,”

R. at 220. Finally, the magistrate judge observed that any confusion or misunderstanding

                                             5
on Mr. Ramirez’s part was insufficient to invoke equitable tolling because “‘ignorance of

the law, even for an incarcerated pro se petitioner, generally does not excuse prompt

filing.’” R. at 220-21 (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).

       The district court agreed with the recommendation, adopted the supplemental

report over Mr. Ramirez’s objections, and granted the motion to dismiss “for

substantially the reasons stated in the supplemental report and its application of the Loftis

standard.” R. at 230. This appeal followed.

II.    Standard of review

       We review de novo the dismissal of a § 2254 petition as untimely under § 2244(d).

United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012). But “we review the

district court’s decision on equitable tolling for an abuse of discretion.” Id. (internal

quotation marks omitted). Although Mr. Ramirez’s appointed counsel has filed briefs in

this case, we afford a liberal construction to Mr. Ramirez’s pro se filings (here and in the

district court), but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925,

927 n.1 (10th Cir. 2008).

III.   Discussion

       In his pro se brief, Mr. Ramirez claims the district court erred in reversing its

position on equitable estoppel and ultimately concluding it did not apply simply because

the State filed a motion to dismiss his petition as untimely. We readily reject this

argument. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated,

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the

parties . . . may be revised at any time before the entry of a judgment adjudicating all the

                                               6
claims and all the parties’ rights and liabilities.”); Rimbert v. Eli Lilly & Co., 647 F.3d

1247, 1251 (10th Cir. 2011) (“[D]istrict courts generally remain free to reconsider their

earlier interlocutory orders,” and the law-of-the-case doctrine does not apply “to rulings

revisited prior to entry of a final judgment.” (internal quotation marks omitted)); see also

Day v. McDonough, 547 U.S. 198, 209-10 (2006) (holding “that district courts are

permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s

habeas petition,” but explaining that “before acting on its own initiative, a court must

accord the parties fair notice and an opportunity to present their positions”).3

       In his counseled brief, Mr. Ramirez agrees with the district court’s ruling that his

motion for a suspended sentence extended his filing deadline to August 20, 2016. And he

concedes that because his First APCR was more than twenty pages, it did not satisfy the

state court’s page limit and therefore was not “properly filed” within the meaning of


       3
         In his pro se appellate brief, Mr. Ramirez discussed the merits of his
actual-innocence claim, but he did not present any argument that his actual innocence
qualifies as “an equitable exception to § 2244(d)(1),” McQuiggin v. Perkins, 569 U.S.
383, 392 (2013). Counsel for Mr. Ramirez expressly declined to “address
[Mr. Ramirez’s] actual innocence” but stated that Mr. Ramirez does not “concede[] guilt”
or “waive[] any substantive claim relating to his actual innocence.” Aplt. Supp. Br. at 14,
n.11. Mr. Ramirez has therefore forfeited appellate review of whether actual innocence
acts as an equitable exception to the § 2244(d)(1) limitations period in this case.
See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument
insufficiently raised in the opening brief is deemed waived.”). Even if he had adequately
raised the issue, we would consider it waived on appeal because Mr. Ramirez never
addressed it in the district court even though (1) the magistrate judge rejected the
actual-innocence exception in her first report and (2) the State argued in its motion to
dismiss that the exception did not apply. See Daigle v. Shell Oil Co., 972 F.2d 1527,
1539 (10th Cir. 1992) (“As a general rule we refuse to consider arguments raised for the
first time on appeal unless sovereign immunity or jurisdiction is in question.”); see also
Holland v. Florida, 560 U.S. 631, 645 (2010) (reiterating that § 2244(d)(1)’s “statute of
limitations defense is not jurisdictional” (ellipsis and internal quotation marks omitted)).
                                              7
§ 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly

filed’ when its delivery and acceptance are in compliance with the applicable laws and

rules governing filings.”); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000)

(“[A] ‘properly filed’ application is one filed according to the filing requirements for a

motion for state post-conviction relief.”). But he argues that equitable tolling should

apply to the nearly nine-month period that his Overlength Motion was pending before the

OCDC, and that such tolling would allow § 2244(d)(2) to toll the limitations period

during the time his Second APCR was pending. The end result of these calculations

would make his § 2254 petition timely filed. We reject this argument.

       Section 2244(d)(1)’s limitations period “is subject to equitable tolling,” Holland v.

Florida, 560 U.S. 631, 645 (2010), but “only in rare and exceptional circumstances,”

Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011) (internal quotation marks omitted).

A petitioner seeking equitable tolling of the limitations period 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, 560 U.S. at 649 (internal quotation marks

omitted). The extraordinary-circumstance “prong of the equitable tolling test is met only

where the circumstances that caused a litigant’s delay are both extraordinary and beyond

[his] control.” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756

(2016).

       Mr. Ramirez argues that he diligently pursued his rights because soon after the

OCDC struck his First APCR, he sought leave to file a post-conviction motion that

exceeded the page limits, and when that was ultimately denied more than eight months

                                              8
later, he promptly filed a post-conviction motion that complied with the court’s

twenty-page limit. He contends that the time it took for the OCDC to rule on the

Overlength Motion was an extraordinary circumstance that stood in his way of filing an

APCR before expiration of § 2244(d)(1)(A)’s limitations period. He leans heavily on

Burger v. Scott, 317 F.3d 1133 (10th Cir. 2003), for the observation that equitable tolling

may be appropriate “when a prisoner actively pursues judicial remedies but files a

defective pleading during the statutory period,” id. at 1141 (quoting Gibson v. Klinger,

232 F.3d 799, 808 (10th Cir. 2000)). And, chief among other points, he claims

Loftis actually supports equitable tolling in his case. We are not persuaded.

       In his Overlength Motion, Mr. Ramirez informed the OCDC that he was trying to

exhaust his state-court remedies before filing his federal habeas petition: “[I am] facing a

deadline to submit fully exhausted[,] through the State appeals process[,] issues to the

federal appeals courts within one year of [my] accum[u]lated denial dates.” R. at 143.

As found by the magistrate judge, that deadline was statutorily tolled until August 20,

2016. Despite Mr. Ramirez’s express awareness of a deadline for obtaining the benefit of

further statutory tolling by virtue of a properly-filed APCR, and in the face of that

deadline steadily approaching as the Overlength Motion pended before the OCDC, he did

not prompt the OCDC to rule on the motion, nor did he submit an APCR that complied

with the twenty-page limit prior to the expiration of the § 2244(d)(1)(A) limitations

period. And although the OCDC had struck his First APCR, he did not submit a

proposed APCR with his Overlength Motion, which might have supported equitable

tolling under Burger, to which we now turn.

                                              9
       In Burger, a prisoner had sent an APCR to the state court through the prison mail,

but the state court did not file it until four months later, after the federal habeas

limitations period expired. After determining that statutory tolling did not apply, we

concluded that the district court had abused its discretion in denying equitable tolling.

Among other reasons, we explained that by placing in the prison mailing system an

APCR that was “proper . . . under the applicable state law,” Burger, 317 F.3d at 1142, the

prisoner “believed that his state petition was sufficient to begin the State’s process of

reviewing his claim,” and the record contained evidence that the state court had been in

possession of the APCR for “the entire four-month period,” id. at 1143.

       Unlike the APCR in Burger, Mr. Ramirez’s First APCR was not “proper” under

applicable Oklahoma law because it exceeded Rule 37(B)’s page limit without prior

permission. And because Mr. Ramirez did not submit an APCR with his Overlength

Motion,4 it was not reasonable for Mr. Ramirez to believe that the Overlength Motion

was sufficient to begin the OCDC’s review of his claims. For these same reasons, we

find inapplicable Burger’s recognition that due diligence may be shown “when a prisoner

actively pursues judicial remedies but files a defective pleading during the statutory

period,” id. at 1141 (quoting Gibson, 232 F.3d at 808). Burger took this principle from


       4
          Although Mr. Ramirez states in his pro se brief that he attached an APCR to his
Overlength Motion, there is no APCR attached to the Overlength Motion contained in the
district court record, and his attorney agrees that it appears he filed the motion without
attaching his APCR. Further, the content of the Overlength Motion indicates that
Mr. Ramirez may have attached only the OCDC’s prescribed form for an APCR to
support his argument that certain required fields in the form occupied three pages and
therefore the pages remaining for presentation of the issues is not equivalent to a
twenty-page brief. R. at 142.
                                               10
Gibson, where we cited Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990),

as support. See Gibson, 232 F.3d at 808. In Irwin, the Supreme Court cited two

examples of when it had concluded that a defective filing warranted equitable tolling:

(1) a complaint timely filed but in the wrong court and (2) a timely-filed but defective

class action, which equitably tolled the limitations period for individual claims. Irwin,

498 U.S. at 96 & n.3. Mr. Ramirez’s circumstances are distinguishable from either of

those examples. They are also distinguishable from Burger, where the only possible

defect mentioned was applicability of a filing fee, but that did not preclude the state court

from ultimately accepting the otherwise-proper APCR. Burger, 317 F.3d at 1144. Here,

the OCDC promptly struck Mr. Ramirez’s First APCR. Because substantial time (nine

months) remained before the § 2244(d)(1)(A) limitations period expired, any actions

determinative of due diligence occurred after that ruling.

       Although “[t]he diligence required for equitable tolling is reasonable diligence, not

maximum feasible diligence,” Holland, 560 U.S. at 653 (citation and internal quotation

marks omitted), under the circumstances here, we see no abuse of discretion in the district

court’s determination that Mr. Ramirez did not act with the requisite diligence when he

filed his Overlength Motion. Further, the fact that the OCDC took nearly nine months to

rule on the Overlength Motion may have been a circumstance beyond Mr. Ramirez’s

control, but it did not prevent or prohibit him from filing an APCR that complied with the

page limitation prior to the expiration of the federal habeas limitations period.5 In fact,


       5
        Relatedly, we disagree with Mr. Ramirez’s contention that based on the portion
of Rule 37(B) stating that “[n]o further briefs shall be filed without prior permission of
                                             11
when the OCDC eventually denied the Overlength Motion on August 6, 2016,

Mr. Ramirez still had until August 20, 2016, to file an APCR that complied with the page

limitation, but he did not file a compliant APCR until August 25, 2016.

       Mr. Ramirez’s reliance on Loftis does not call for a different conclusion. Through

no fault of his own, Mr. Loftis, a state prisoner, did not receive a copy of an order

denying his APCR until seventeen days after it was filed, a full week after the ten-day

period to file a notice of appeal from it had expired. Upon receipt, Mr. Loftis promptly

filed a motion in the state district court seeking an extension of time to file his notice of

appeal, which the court granted. Mr. Loftis filed a notice of appeal, but the case

languished in the OCCA for a year before that court ruled that the district court’s order

granting the extension “had no legal effect” and dismissed the appeal as untimely. Loftis,

812 F.3d at 1271. The OCCA determined that Mr. Loftis should have known to ignore

what appeared to this court to be a “mandatory requirement to file a notice of appeal,” id.

at 1276, and instead could have, and should have, filed “a petition in error and supporting

brief” within the time that remained to do so when he finally received the order denying

his APCR, id. at 1271. During the year the case was before the OCCA, the § 2244(d)(1)

limitations period expired. Under these circumstances, we concluded that equitable


the assigned judge,” he reasonably believed he could not file a compliant APCR after the
OCDC had struck the First APCR. We instead agree with the State that when read in
context, this prohibition on “further briefs” refers to briefs beyond the opening and reply
briefs mentioned in the rule, not other motions or, in this case, another APCR. It would
be unreasonable to believe that this prohibited Mr. Ramirez from filing a compliant
APCR just because the court had struck his First APCR. In any event, “ignorance of the
law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”
Marsh, 223 F.3d at 1220 (internal quotation marks omitted).
                                              12
tolling applied, primarily because the “state district court itself caused [Mr. Loftis] to

believe,” through its order granting his motion for an extension of time, “that his efforts

had been sufficient to ensure state review of his habeas claims.” Id. at 1275. We also

determined that Mr. Loftis had “made reasonable, diligent efforts to comply with

procedural rules which provided no clear guidance for the unusual circumstances in

which, through no fault of his own, he was situated.” Id.

       The district court in Mr. Ramirez’s case distinguished Loftis on the ground that the

record provided no basis for finding that the OCDC “had led [Mr. Ramirez] to believe he

had done all that was required under the circumstances. . . . Rather, the pertinent state

court orders made clear that [Mr. Ramirez’s] filing was not sufficient. They did nothing

to suggest that [he] had done all that was necessary for state collateral review . . . .”

R. at 230. We agree with the district court on this point.

       Mr. Ramirez argues that like Mr. Loftis, he was confused by Rule 37(B) because it

provides no guidance on proper procedure in the event an APCR is stricken for exceeding

the page limit. He points out that in the order striking the First APCR, the OCDC did not

provide any guidance either. And he asserts it was reasonable to believe he did all that

was necessary to ensure state collateral review when he asked for permission to file an

overlength APCR. We disagree. Although Rule 37(B) makes plain that a prisoner must

obtain permission from the court before filing an APCR that exceeds twenty pages,

simply asking for that permission was not sufficient to “ensure state review of

[Mr. Ramirez’s] habeas claims,” Loftis, 812 F.3d at 1275, because nothing guaranteed

that the OCDC would give that permission. It was therefore unreasonable for

                                              13
Mr. Ramirez to believe that by filing the Overlength Motion, he had done all that was

necessary to ensure state collateral review. Furthermore, unlike the situation in Loftis,

which was not due to any fault on the prisoner’s part, the circumstances in which

Mr. Ramirez found himself were of his own making—he filed his First APCR without

obtaining prior permission to exceed the page limit, and he elected to file a motion to

exceed the page limit rather than an APCR that conformed to the limit.

       Finally, we reject Mr. Ramirez’s contention that, because the OCDC struck his

First APCR only twelve days after it was filed, the OCDC’s lengthy silence on his

Overlength Motion reasonably suggested he had done all that was required to ensure

collateral review. While the delay may have been inordinate, there always remained the

very real—and ultimately realized—possibility that the OCDC would deny the motion. It

was therefore unreasonable for Mr. Ramirez to construe the OCDC’s silence on the

matter as an indication that he had done enough to ensure collateral review.

IV.    Conclusion

       For the foregoing reasons, we conclude that the district court did not abuse its

discretion in declining to apply equitable tolling. We therefore affirm its judgment.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




                                             14
