No. 2:15-CV-00161-NDF D. Wyo.
KELLY, HOLMES, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
J. Kelly, Jr. Circuit Judge
Rehan Ali Bhutto, a state inmate appearing pro se, seeks a
certificate of appealability ("COA") so that he may
appeal from the district court's denial of his habeas
corpus petition filed pursuant to 28 U.S.C. § 2254. 28
U.S.C. § 2253(c)(1)(B). To receive a COA, Mr. Bhutto
must make a "substantial showing of the denial of a
constitutional right." 28 U.S.C. 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Because the district court denied his petition on a
procedural ground (time-bar), Mr. Bhutto 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). We hold that the district court's
decision that the petition is time-barred is not reasonably
debatable. Therefore, we deny a COA and dismiss the appeal.
a jury trial, Mr. Bhutto was convicted in state court of
premeditated first-degree murder and was sentenced to life
without the possibility of parole in 2002. Mr. Bhutto
appealed, and the Wyoming Supreme Court affirmed on July 13,
2005. On May 8, 2006, Mr. Bhutto filed his first
post-conviction petition, which the state district court
dismissed on December 1, 2008. Although Mr. Bhutto did not
seek review of that dismissal, he filed a second
post-conviction petition on April 3, 2015. On July 7, 2015,
the state district court dismissed the second petition as
untimely and procedurally barred, because Mr. Bhutto did not
raise his claim on direct appeal or in his first petition.
The Wyoming Supreme Court denied Mr. Bhutto's subsequent
petition for writ review of that decision.
Bhutto then filed a habeas petition in federal court on
September 16, 2015, claiming ineffective assistance of
counsel arising from his attorneys' alleged failure to
develop and argue a heat of passion defense and to
investigate an automatism defense. The State moved to dismiss
the petition as time-barred by the one-year limitations
period in 28 U.S.C. § 2244(d)(1). The district court
granted the State's motion after determining that the
petition was more than six years late and that neither
statutory nor equitable tolling applied.
appeal, Mr. Bhutto does not contend that his habeas petition
was timely, but argues that he is entitled to both statutory
and equitable tolling. However, we see no basis for tolling
that could render this petition timely.
qualify for statutory tolling under 28 U.S.C. §
2244(d)(1)(B), Mr. Bhutto must identify an impediment caused
by unconstitutional state action that actually prevented him
from filing. See Krause v. Thaler, 637 F.3d 558,
560-61 (5th Cir. 2011). He contends that his inability to
access transcripts, court records, attorney notes, and other
discovery from his attorneys constitutes a state-created
impediment to timely filing. However, the failure of Mr.
Bhutto's attorneys to turn over notes and discovery does
not constitute state action. Sigala v. Bravo, 656
F.3d 1125, 1127-28 (10th Cir. 2011) (actions by
defendant's counsel are not state action). Further, Mr.
Bhutto's explanations of why the documents held by the
state were necessary to pursue his federal claim fall far
short. See Clark v. Oklahoma, 468 F.3d 711, 714
(10th Cir. 2006). Mr. Bhutto's arguments in his petition
regarding the heat of passion and automatism defenses are of
the kind that can be made without access to any of the
materials sought. Indeed, in his petition for writ of habeas
corpus, Mr. Bhutto clearly detailed the alleged inadequacies
of counsel without reference to the trial transcript or other
requested documents. See 1 R. 12-18, 21-24. Thus, we
conclude that the district court's determination, that
Mr. Bhutto failed to demonstrate how state action impeded him
from filing within the one-year statute of limitations, is
not reasonably debatable.
Mr. Bhutto's statutory tolling arguments are without
merit, his petition is timely only if equitable tolling
applies. To qualify for equitable tolling, a petitioner must
establish diligent pursuit of his claims and show that his
failure to file timely was caused by extraordinary
circumstances beyond his control. Holland v.
Florida, 560 U.S. 631, 649 (2010); Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Here, Mr.
Bhutto advances the same argument regarding his inability to
access various documents. Again, the district court's
conclusion, that Mr. Bhutto has failed to demonstrate how he
diligently pursued his right to file a federal habeas claim
during the past six years, is not reasonably debatable. The
failure to receive trial transcripts and certain other court
documents to canvas the record for possible error does not
constitute "extraordinary circumstances" that would
entitle Mr. Bhutto to equitable tolling. See Heinemann v.
Murphy, 401 F.App'x 304, 311-12 (10th Cir. 2010).
the district court's decision is not reasonably
debatable, we DENY Mr. Bhutto's request for a COA, DENY