D.C. Nos. 2:16-CV-00102-NDF and 2:14-CR-00112-NDF-1
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
E. Bacharach Circuit Judge
appeal stems from a car search. In the search, authorities
found methamphetamine and a large amount of cash, which
ultimately led to the passenger's conviction for drug
crimes. The passenger, Mr. Willis Center, moved for vacatur
of his sentence under 28 U.S.C. § 2255, and the district
court denied relief.
Center wants to appeal and avoid prepayment of the filing
fee. He can pursue the appeal only if we grant a certificate
of appealability. 28 U.S.C. § 2253(c)(1)(B). And he can
avoid prepayment of the filing fee only by obtaining leave to
proceed in forma pauperis. We deny the certificate of
appealability and dismiss the appeal. But we grant leave to
proceed in forma pauperis.
Mr. Center's Claims
original motion, Mr. Center alleged that his sentence had
been improperly enhanced under sentencing-guideline
provisions that were unconstitutionally vague. And in a
motion for leave to amend, Mr. Center sought to add claims
involving the constitutionality of the car search and
ineffective assistance of counsel. The district court
rejected the original claim and denied leave to amend.
reviewing these challenges, we consider whether the district
court's ruling is subject to reasonable debate. If not,
we must deny the request for a certificate of appealability.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Claim in the Original Motion
claim in the original motion, based on vagueness of the
pertinent guideline provision, is foreclosed by Beckles
v. United States, 137 S.Ct. 886 (2017). There the
Supreme Court held that the sentencing guidelines are not
subject to the void-for-vagueness doctrine. Beckles,
137 S.Ct. at 897. Thus, any reasonable jurist would reject
Mr. Center's vagueness challenge to the sentence.
III. Mr. Center's Motion for Leave to
Center also sought leave to add claims involving the car
search and ineffective assistance of counsel. These claims
would have been untimely.
under § 2255 are subject to a one-year period of
limitations. 28 U.S.C. § 2255(f). The district court
concluded that the claims would ordinarily be time-barred,
and Mr. Center does not argue to the contrary. The conviction
became final in March 2015, and he waited until May 2016 to
file the habeas petition. Thus, the habeas petition is
Center urges equitable tolling based on extraordinary
circumstances involving obstructive conduct by prison
officials and counselors. Equitable tolling is rarely
appropriate and applies only when the claimants are unable to
timely file documents based on impediments outside of the
claimants' control. See Yang v. Archuleta, 525
F.3d 925, 928 (10th Cir. 2008) ("'Equitable tolling
is a rare remedy to be applied in unusual circumstances . . .
.'" (quoting Wallace v. Kato, 549 U.S. 384,
396 (2007))); Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000) (holding that equitable tolling requires
extraordinary circumstances beyond the claimant's
control). But Mr. Center has not ...