685 Fed.Appx. 682 (10th Cir. 2017), 16-8033, United States v. McAbee

Docket Nº:16-8033
Citation:685 Fed.Appx. 682
Opinion Judge:Terrence L. O'Brien, United States Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MCABEE, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: James C. Anderson, Esq., Office of the United States Attorney, District of Wyoming, Cheyenne, WY; Jason M. Conder, Office of the United States Attorney, District of Wyoming, Cheyenne, WY; David A. Kubichek, Esq., Office of the United States Atto...
Judge Panel:Before HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.
Case Date:April 20, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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685 Fed.Appx. 682 (10th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JAMES MCABEE, Defendant - Appellant

No. 16-8033

United States Court of Appeals, Tenth Circuit

April 20, 2017

(D.C. Nos. 2:15-CV-00122-ABJ and 2:12-CR-00024-ABJ-1). (D. Wyo.).

For United States of America, Plaintiff - Appellee: James C. Anderson, Esq., Office of the United States Attorney, District of Wyoming, Cheyenne, WY; Jason M. Conder, Office of the United States Attorney, District of Wyoming, Cheyenne, WY; David A. Kubichek, Esq., Office of the United States Attorney, District of Wyoming, Cheyenne, WY.

James Mcabee, Defendant - Appellant, Pro se, Duncan, SC.

Before HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL

Terrence L. O'Brien, United States Circuit Judge

James McAbee, a federal prisoner proceeding pro se,[1] wants to appeal from the denial of his 28 U.S.C. § 2255 motion as

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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 a COA.

I. Background

McAbee 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 space." 2

McAbee 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).

Almost 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.3 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).

The 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

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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.

II. Discussion

A COA 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

About 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.

A. Actual Innocence

" [A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment...

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