Thomas v. Patton, 10th Cir. (2015)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
April 1, 2015
Elisabeth A. Shumaker
Clerk of Court
RASHAD AMIN THOMAS,

Petitioner - Appellant,
v.
ROBERT PATTON, ODOC Director,
No. 14-6238
(D.C. No. 5:14-CV-00712-R)
(W.D. Okla.)
Respondent - Appellee.
ORDER
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
In this habeas case, we are called upon to address an issue of timeliness.

The petitioner, Mr. Rashad Amin Thomas, pleaded guilty in state court on charges
involving first degree murder and possession of a firearm after a former
adjudication. The state district court accepted Mr. Thomass plea, and the
conviction became final in 2002.
Under federal law, a habeas petition must ordinarily be filed within one year
of the date that the conviction became final. 28 U.S.C. 2244(d)(1)(A). Mr.
Thomas waited roughly eleven years to seek relief in state court and twelve years
to seek habeas relief in federal court. Based on this delay, the district court
ordered dismissal based on timeliness. Mr. Thomas seeks to appeal, arguing that
he is entitled to equitable tolling. To appeal, Mr. Thomas needs a certificate of

appealability. See 28 U.S.C. 2253(c)(1)(B). We decline to issue the certificate
and dismiss the appeal.
For a certificate of appealability, Mr. Thomas must show that reasonable
jurists could debate the district courts ruling on timeliness. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). Mr. Thomas fails to make this showing.
Acknowledging his twelve-year delay, Mr. Thomas urges equitable tolling
based on
!
abandonment by counsel,
lack of access to the law library while at the Granite Reformatory,

and
ex parte communications between the state district judge and the

District Attorneys Office.
For equitable tolling, however, Mr. Thomas must show due diligence. See Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). No reasonable jurist would find
due diligence even if all of Mr. Thomass allegations were credited.
Though Mr. Thomas urges abandonment of counsel, he acknowledges that
he pleaded guilty. When entering this plea, Mr. Thomas stated in writing that he
understood his right to appeal. R. vol. 1 at 85. Then, he confirmed this
understanding to the state district judge:
The Court:
You know you have a right to appeal from the

Judgment and Sentence imposed by this Court today.
You have reviewed that with your attorney, is that

correct?
The Defendant:
Yes, maam.
The Court:
Mr. Thomas, I see on the paperwork that you have

circled, yes, that you have understand [sic] your
rights and how to initiate an appeal, is that correct?
The Defendant:
Yes, maam.
The Court:
Do you need me to review with you any of your

rights or that process?
The Defendant:
No, maam.
Id. at 132.
Mr. Thomas waited over eleven years before taking action. When he did, he
requested leave to appeal out of time in state court, arguing abandonment by his
attorney. The state courts declined this request. Mr. Thomas argues that these
decisions were tainted by misconduct on the part of the state district judge and the
prosecutor.
Even if there had been misconduct, however, Mr. Thomas had little reason
to wait more than eleven years before seeking leave to appeal out of time.
Mr. Thomas argues that
!
he would ultimately have been able to appeal if his attorney had not
failed to act or if the state district judge had acted honestly, and
honest consideration of his application would have resulted in leave

to appeal out of time, which would have restarted the one-year
limitations period for a habeas petition.
For the sake of argument, we may assume that these arguments are correct. Still,
as Mr. Thomas acknowledges, he could invoke equitable tolling only if he had
acted with due diligence in the face of his attorneys abandonment or the
misconduct by the judge and prosecutor. See App. for Cert. of Appealability at 3A
(But, to get to the Jimenez v. Quarterman resetting of the clock, I must overcome
the hurdles of demonstrating equitable tolling, extraordinary circumstances, due
diligence, and cause and prejudice.). Any reasonable jurist would conclude that
Mr. Thomas failed to act with due diligence by waiting over eleven years to take
any action.
Mr. Thomas contends that for the 8 years he was at the Granite
Reformatory, he was unable to use the law library. Id. at 4F. Even if Mr. Thomas
had not been able to use the law library for this 8 year period, that would not
explain his failure to take any action when he was housed elsewhere for 2 years.
And, with or without access to a law library, Mr. Thomas should have known that
he would not have had eleven years to appeal.
He acknowledges that most jurists would conclude that he was not diligent.
See id. at 4G (Since it has been almost 14 yrs since my guilty plea, most jurists
are not inclined to conclude due diligence.). We would go further and conclude
that no reasonable jurist would regard Mr. Thomas as diligent when he waited
until 2014 to file a habeas petition on a conviction that had become final twelve
years earlier. In these circumstances, we decline to issue a certificate of

appealability and dismiss the appeal.
With his request for a certificate of appealability, Mr. Thomas requested
leave to proceed in forma pauperis. Because we are dismissing the appeal, we
deny the request for leave to proceed in forma pauperis on the ground of mootness.
See Johnson v. Keith, 726 F.3d 1134, 1136 (10th Cir. 2013) (denying leave to
proceed in forma pauperis on the ground of mootness upon denial of a certificate
of appealability).
Entered for the Court
Robert E. Bacharach
Circuit Judge

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

RASHAD AMIN THOMAS,

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

In this habeas case, we are called upon to address an issue of timeliness.

he is entitled to equitable tolling. To appeal, Mr. Thomas needs a certificate of

lack of access to the law library while at the Granite Reformatory,

ex parte communications between the state district judge and the

You know you have a right to appeal from the

You have reviewed that with your attorney, is that

Mr. Thomas, I see on the paperwork that you have

Do you need me to review with you any of your

honest consideration of his application would have resulted in leave

years earlier. In these circumstances, we decline to issue a certificate of

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