LYNDAL D. RITTERBUSH, Petitioner - Appellant,
LARRY BENZON, Respondent - Appellee.
No. 2:17-CV-00913-RJS) (D. Utah)
HOLMES, MURPHY, and CARSON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
MICHAEL R. MURPHY CIRCUIT JUDGE
matter is before the court on Lyndal D. Ritterbush's pro
se request for a certificate of appealability (ACOA@).
Ritterbush seeks a COA so he can appeal the district
court's dismissal, on timeliness grounds, of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C.
§ 2253(c)(1)(A) (providing no appeal may be taken from
Aa final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
State court@ without first obtaining a COA); id.
' 2244(d)(1) (setting out a one-year statute of
limitations on' 2254 petitions, running from the date on
which the conviction became final). Because Ritterbush has
not Amade a substantial showing of the denial of a
constitutional right, @ id. ' 2253(c)(2), this
court denies his request for a COA and
dismisses this appeal.
1984, Ritterbush pleaded guilty in Utah state court to
attempted aggravated sexual abuse of a child, a first degree
felony. On November 23, 1984, the trial court sentenced him
to a term of imprisonment of from five years to life.
Ritterbush filed the instant' 2254 habeas petition in
2017. Upon the state of Utah's motion, the district court
dismissed Ritterbush's petition as untimely. In so doing,
the district court noted that because Ritterbush's
conviction became final before Congress passed the
Antiterrorism and Effective Death Penalty Act of 1996,
Ritterbush had to file his federal habeas petition within one
year of April 24, 1996. See Gibson v. Klinger, 232
F.3d 799, 803, 808 (10th Cir. 2000). Instead, Ritterbush
filed his' 2254 petition some twenty-one years later. The
district court further noted Ritterbush was not entitled to
statutory tolling because he did not file a state-court
request for collateral relief within the relevant time
period. See 28 U.S.C. § 2244(d)(2); Fisher
v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
Finally, the district court determined Ritterbush had not
demonstrated the kind of extraordinary circumstances that
would come close to equitably tolling the extreme twenty-year
delay in the filing of his habeas petition. See Al-Yousif
v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015) (holding
that “[e]quitable tolling is a rare remedy to be
applied in unusual circumstances” (quotation omitted)).
granting of a COA is a jurisdictional prerequisite to
Ritterbush's appeal from the dismissal of his' 2254
petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, he must make “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he must demonstrate “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El,
537 U.S. at 336 (quotations omitted). When a district court
dismisses a' 2254 motion on procedural grounds, a
petitioner is entitled to a COA only if he shows both that
reasonable jurists would find it debatable whether he had
stated a valid constitutional claim and debatable whether the
district court's procedural ruling was correct. Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating
whether Ritterbush has satisfied his burden, this court
undertakes “a preliminary, though not definitive,
consideration of the [legal] framework” applicable to
each of his claims. Miller-El, 537 U.S. at 338.
Although Ritterbush need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove
something more than the absence of frivolity or the existence
of mere good faith.” Id. (quotations omitted).
As a further overlay on this standard, we review for abuse of
discretion the district court's decision that Ritterbush
is not entitled to have the limitations period set out
in' 2244(d)(1) equitably tolled. See Burger v.
Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).
undertaken a review of Ritterbush's appellate filings,
the district court's order of dismissal, and the entire
record before this court pursuant to the framework set out by
the Supreme Court in Miller-El and Slack,
we conclude Ritterbush is not entitled to a COA. The district
court's resolution of Ritterbush's' 2254 motion
is not deserving of further proceedings or subject to a
different resolution on appeal. In so concluding, there is no
need for this court to repeat the cogent and convincing
analysis set out in the district court's order. See
Buck v. Davis, 137 S.Ct. 759, 773-74 (2017) (holding
that the process of resolving whether a ...