(D.C. No. 5:14-CV-00712-R) (W.D. Okla.)
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
Robert E. Bacharach, Circuit Judge.
In this habeas case, we are called upon to address an issue of timeliness. The petitioner, Mr. Rashad Amin Thomas, pleaded guilty in state court on charges involving first degree murder and possession of a firearm after a former adjudication. The state district court accepted Mr. Thomas's plea, and the conviction became final in 2002.
Under federal law, a habeas petition must ordinarily be filed within one year of the date that the conviction became final. 28 U.S.C. § 2244(d)(1)(A). Mr. Thomas waited roughly eleven years to seek relief in state court and twelve years to seek habeas relief in federal court. Based on this delay, the district court ordered dismissal based on timeliness. Mr. Thomas seeks to appeal, arguing that he is entitled to equitable tolling. To appeal, Mr. Thomas needs a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). We decline to issue the certificate and dismiss the appeal.
For a certificate of appealability, Mr. Thomas must show that reasonable jurists could debate the district court's ruling on timeliness. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Mr. Thomas fails to make this showing.
Acknowledging his twelve-year delay, Mr. Thomas urges equitable tolling based on
● abandonment by counsel,
● lack of access to the law library while at the Granite Reformatory, and
● ex parte communications between the state district judge and the District Attorney's Office.
For equitable tolling, however, Mr. Thomas must show due diligence. See Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). No reasonable jurist would find due diligence even if all of Mr. Thomas's allegations were credited.
Though Mr. Thomas urges abandonment of counsel, he acknowledges that he pleaded guilty. When entering this plea, Mr. Thomas stated in writing that he understood his right to appeal. R. vol. 1 at 85. Then, he confirmed this understanding to the state district judge:
The Court: You know you have a right to appeal from the Judgment and Sentence ...