UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHARLES KENZELL CARTER, 

 Petitioner - Appellant, 

v. 

STATE OF WYOMING; WYOMING 

ATTORNEY GENERAL; NEICOLE 

MOLDEN, in her official capacity as 

Wyoming Department of Corrections State 

Penitentiary Warden; RICK WHITE, in his 

official capacity as Red Onion State Prison 

Warden, 

 Respondents - Appellees. 

No. 23-8062 

(D.C. No. 2:22-CV-00253-ABJ) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. 

_________________________________ 

Petitioner Charles Carter, appearing pro se, requests a certificate of appealability 

(“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 application. 

For the reasons stated below, we deny his request for a COA and dismiss the matter. 

*

 This order is not binding precedent except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 24, 2024

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 23-8062 Document: 010111055091 Date Filed: 05/24/2024 Page: 1
2 

I. 

 On April 19th, 2017, Petitioner pled no contest to one charge of second-degree 

murder in Wyoming state court. Pursuant to the plea agreement, the trial court sentenced 

Petitioner to a term of incarceration of forty-to-eighty years. Petitioner did not appeal his 

sentence, but in 2022 he unsuccessfully sought post-conviction relief in Wyoming district 

court. 

 Petitioner then filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 

§ 2254 in the United States District Court for the District of Wyoming, raising seven 

grounds for relief. The district court granted Respondents’ motion to dismiss, finding 

that the petition was untimely, and that Petitioner was not entitled to equitable tolling. 

The district court also denied Petitioner a COA. Petitioner requests from us a COA to 

appeal the district court’s dismissal. 

II. 

 To receive a COA, Petitioner must make a “substantial showing of the denial of a 

constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. 

§ 2253(c)(2)). “[W]hen the district court denies a habeas petition on procedural grounds 

without reaching the prisoner’s underlying constitutional claim, a COA should 

issue . . . if 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, 478 (2000). When we can rule 

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based on the procedural question without addressing the merits, we may do so. Id. at 

485. 

The relevant statute establishes a one-year limitations period on applications for 

writs of habeas corpus. 28 U.S.C. § 2244(d)(1). Because Petitioner admitted he did not 

meet this requirement, we will only grant a COA if Petitioner establishes equitable tolling 

entitlement. We review for abuse of discretion a district court’s determination that a 

defendant is not entitled to equitable tolling. Fleming v. Evans, 481 F.3d 1249, 1254 

(10th Cir. 2007) (citing Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir. 2003)). 

Therefore, “we will vacate the District Court’s determination that equitable tolling is 

inapplicable only if reasonable jurists could debate whether the [district] court’s refusal to 

toll the statute of limitations was an abuse of discretion.” Id. at 1254–55. A petitioner 

must “show specific facts to support his claim of extraordinary circumstances and due 

diligence” to be entitled to equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th 

Cir. 2008). 

Petitioner has not established that his delay was because of extraordinary 

circumstances despite due diligence—even affording “solicitous construction” to 

Petitioner’s pro se filings. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th 

Cir. 2007). Of the seven issues Petitioner raises, only his ineffective assistance of 

counsel claim even conceivably concerns the circumstances of his delay. But we have 

held that ineffective assistance is “not generally a basis for equitable tolling,” and the 

missteps that Petitioner alleges are not egregious enough to create an entitlement to 

equitable tolling. Fleming, 481 F.3d at 1255–56 (citing Coleman v. Thompson, 501 U.S. 

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722, 752 (1991)). Thus, we hold that the district court did not abuse its discretion in 

refusing to equitably toll the limitation period in 28 U.S.C. § 2244(d)(1).1

We DENY Petitioner’s COA request. 

DISMISSED. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

1

 Because we deny Petitioner’s COA request for procedural reasons, we also deny 

Petitioner’s Motion to Supplement Appellant’s Substantial Constitutional Violation 

Asserted in Its Certificate of Appealability for Good Cause. 

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