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United States v. Center

United States Court of Appeals, Tenth Circuit

January 5, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILLIS A. CENTER, Defendant-Appellant.

         D. Wyo. D.C. Nos. 2:16-CV-00102-NDF and 2:14-CR-00112-NDF-1

          Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.

          ORDER

          Robert E. Bacharach Circuit Judge

         This 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.

         Mr. 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.

         I. Mr. Center's Claims

         In his 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.

         In 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).

         II. The Claim in the Original Motion

         The 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 Amend

         Mr. Center also sought leave to add claims involving the car search and ineffective assistance of counsel. These claims would have been untimely.

         Claims 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 untimely.

         Mr. 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 ...


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