Nos. 2:15-CV-00122-ABJ and 2:12-CR-00024-ABJ-1) (D. Wyo.)
HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
Terrence L. O'Brien United States Circuit Judge
McAbee, a federal prisoner proceeding pro se,  wants to appeal
from the denial of his 28 U.S.C. § 2255 motion as
untimely. His request for a certificate of appealability
(COA) was denied by the district judge, prompting him to
reapply in this Court. Because he has not "made a
substantial showing of the denial of a constitutional right,
" see 28 U.S.C. § 2253(c)(2), we too deny
had child pornography on his computer as well as FrostWire, a
peer-to-peer file-sharing program. On September 19, 2011, an
agent with the Wyoming Division of Criminal Investigation
used a peer-to-peer program to download one still image from
McAbee's computer. The image showed an adult male
engaging in anal intercourse with a prepubescent female. A
subsequent search of McAbee's computer (with a warrant)
on November 7, 2011, revealed 203 still images and one video
of child pornography in the computer's "unallocated
was indicted for possession of child pornography (Count 1)
and distribution of child pornography (Count 2). See
18 U.S.C. § 2252A(a)(2), (a)(5)(B). He pled guilty to
both counts and was sentenced to 65 months imprisonment.
Judgment was entered July 26, 2012. Although he did not waive
his right to appeal, McAbee did not pursue one. Thus, his
conviction became final on August 9, 2012. See United
States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006)
("If the defendant does not file an appeal, the criminal
conviction becomes final [for purposes of § 2255(f)(1)]
upon the expiration of the time in which to take a direct
criminal appeal."); Fed. R. App. P. 4(b)(1)(A) (in
general, a notice of appeal in a criminal case must be filed
within 14 days of the entry of judgment).
three years later, on July 27, 2015, McAbee filed this §
2255 motion. Pertinent here, he argued counsel was
ineffective for failing to discover relevant case law and
exculpatory evidence. He blamed the delay in filing his motion
on his inexperience with the law. He also argued the statute
of limitations should be equitably tolled because he is
actually innocent and statutorily tolled under §
2255(f)(4) (newly discovered evidence).
district judge dismissed the motion as untimely because it
was not filed within one year from the date his conviction
became final. 28 U.S.C. § 2255(f)(1). He concluded
McAbee's ignorance of the law did not warrant equitable
tolling. See United States v. Gabaldon, 522 F.3d
1121, 1124 (10th Cir. 2008) ("Equitable tolling of the
limitations period is available when an inmate diligently
pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond
his control." (quotation marks omitted)); see also
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
("[I]t is well established that ignorance of the law,
even for an incarcerated pro se petitioner, generally does
not excuse prompt filing." (quotation marks omitted)).
He did not address McAbee's actual innocence claim or
statutory tolling argument.
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
When, as here, the district court denies relief on procedural
grounds without reaching the underlying constitutional
claims, "a COA should issue when the prisoner shows, at
least, 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).
one thing there can be no reasonable debate among jurists:
McAbee's § 2255 motion is untimely and he is not
entitled to equitable tolling based on ignorance of the law.
See Marsh, 223 F.3d at 1220. Had the judge addressed
his other tolling arguments they would have afforded him no
relief because they are clearly without merit; they are not
even reasonably debatable.
innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural
bar . . . or . . . expiration of the statute of
limitations." See McQuiggin v. Perkins, __ U.S.
__, 133 S.Ct. 1924, 1928 (2013). But actual innocence claims
are "rarely successful." Schlup v. Delo,
513 U.S. 298, 324 (1995); see also Perkins, 133
S.Ct. at 1928. This is particularly so in cases like this
one, where McAbee knowingly and ...