UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VICKI DILLARD CROWE, Defendant - Appellant. No. 16-1253 (D.C. Nos. 1:15-C V-00655-MSK and 1:10-CR-00170-MSK-1) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Vicki Dillard Crowe, a former fe deral prisoner now out of prison on supervised release, appeal s the denial of her 28 U.S. C. § 2255 habeas corpus petition. 1 The district court also denied her a certificate of appealability (COA), as do

we. In December 2011, a jury in the District of Colorado convicted Crowe of eight counts of mail fraud in viol ation of 18 U.S.C. § 1341 and eight counts of wire fraud in violation of 18 U.S.C. § 3143. In J une 2012, Crowe made a Motion for Judgment

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Crowe is proceeding pro se, so we c onstrue her pleadings liberally, though we do not act as her advocate. Yang v. Archuleta , 525 F.3d 925, 92 7 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 of Acquittal and an alternativ e Motion for New Trial, which the district court denied on the merits. The motions included ineff ective-assistance-of-c ounsel claims. In September 2012, the district court sentenced her to 60 months in prison, with three years of supervised releas e to follow. Crowe appealed her conviction and sentence and we affirmed on the merits, including th e merits of her ineffective-assistance claims. On the last possible day—March 24, 2015—Crowe submitte d a § 2255 petition to the legal-mail system of the prison in which she was incarcerated, thereby fulfilling the prison mailbox rule, see United States v. Gray , 182 F.3d 762, 765 n.4 (10th Cir. 1999), and making he r petition timely even thou gh it was not filed with the court until six days later. The petition cons isted of eighteen inef fective-assistance claims, relating either to Crowe’s trial c ounsel, counsel at sent encing, or appellate counsel. The claims had only barebones arguments and fact s to back them up, but included with the petition was a statemen t by Crowe notifying the court that she intended to file a follow-up memorandum of law to better support her claims. Crowe stated that she would submit the memorandum at a time determin ed by the district court, or on or before April 30, 2015. As the petition was submi tted on the last day allowed by § 2255’s time limits, this fo llow-up memorandum would of course have come a month past the deadline. But because of what appears to be a mutual misunderstanding, the memorandum never came at all. One week af ter the district court received Crowe’s petition, it ordered the govern ment to address, within 21 days, the timeliness of3 Crowe’s petition. The order also allowe d Crowe to reply to the government’s response. On April 28, 2015, the government responded as directed , stating that it found Crowe’s petition to be timely. In June 2015, Crowe also filed a reply, acknowledging the government’s concession on timeliness, affirmi ng that her petition was indeed timely, and stating that she now trusted “that this matter is able to proceed since the Court’s i nquiry regarding timing has b een addressed.” R. at 86. These pleadings, while seeming to have cleared the deck for the case to proceed, instead induced an 11-month paraly sis. Crowe claims that she interpreted the district court’s timeliness order to mean that the normal course of the § 2255 proceedings were on pause until the timeli ness matter was resolv ed. And because the district court never issued an order formally resolving timeliness, Crowe says she believed the matter to be unresolved a nd so held off on submitting further court documents. Meanwhile, the district court shared no such per ception—it evidently believed that the government’s concession had resolved the timeliness question and so awaited the arrival of Crowe’s follo w-up memorandum (even though it had never formally approved the past -the-deadline submission of the memorandum). In this standoff, Crowe and the distri ct court sat for the next 11 months, each waiting for the other to act. Finally, in May 2016, the district court decided that no follow-up memorandum was forthcoming, and so proceeded to evaluate the barebones arguments and facts that Crow e had already submitted. Unsu rprisingly, it found them severely lacking—the ineffective-assistance claims that were not duplicative of her4 prior claims were merely conclusory asse rtions lacking in sp ecific citations to evidence. The district court found that the failure to file the follow-up memorandum, which might have bolstered Crowe’s claims with more in-depth discussion of specific counsel errors, “requires that her § 2255 motion be denied as insufficient.” Id. at 93. The court also denied her a COA. Crowe m oved for the district court to reconsider, but the district court declined to do so, and also certified that Crowe’s appeal was not taken in good faith and denied her in forma pauperis ( ifp ) status on appeal. See 28 U.S.C. § 1915(a)(3). Crowe, emphasizing her pro se status and the misunde rstanding, urges us to rewind the clock and finally allow her to fully brief her § 2255 petition. The misunderstanding and the delay in this case seem to have been both regrettable and avoidable. But they do not alter the fact that Crowe submitted her § 2255 petition on the last possible day. That last-minute f iling still made her petition timely—and had she submitted her memorandum of law at the same time as the petition, it too would have been timely. But of course, a last-minut e filing means that anything filed later is untimely. Crowe might have hoped that the district court would consider her memorandum anyway, but the district court ne ver gave any formal indication that it would, and Crowe had no right to expect such a result. At any time, the district court could have denied Crowe the opportunity to file the follow-up memorandum. The5 fact that the district court did not, though partly responsible fo r the confusion, does not mean that it or we must accept the memorandum now. 2 Therefore, we, like the district court, consider only the materials that Crowe has already submitted. To obtain a COA, Cr owe must make “a subs tantial showing of the denial of a constitutiona l right.” 28 U.S.C. § 2253(c )(2). Crowe’s petition does not do so. Her claims either repeat cl aims she made earl ier or set out only impermissibly vague assertions of the ineffective assistance of her counsel. We also deny Crowe ifp status on appeal. Even a party who has been certified as not appealing in good faith, such as Crowe, can request ifp status on appeal so long as she shows both a financial inability to pay and a reasoned, no nfrivolous argument, and follows the procedure mandated by Fed. R. App. P. 24(a)(5). Rolland v. Primesource Staffing, L.L.C. , 497 F.3d 1077, 1078-79 (10th Cir. 2007). 3 But Crowe has not shown the existence of a reasoned, nonfrivolous argument and so must be denied ifp status.

2 Crowe’s brief also contains few, if any, hints about what arguments a potential follow-up memorandum would make to satisfy the required showings for a successful ineffective- assistance claim. See Strickland v. Washington , 466 U.S. 668 (1984).

3 “Upon its face, § 1915(a)(3) would appear to foreclose our consideration of [a motion to proceed IFP]; its mandatory language deni es the availability of an appeal in forma pauperis upon th e district court’s certificat ion of a lack of good faith, and it provides no escape hatch of appellate review or rec onsideration. Federal Rule of Appellate Procedure 24(a)(5), on the othe r hand, purports to expressly permit our consideration of [such] a mo tion . . . . The palpable conf lict between these provisions is resolved in favor of the procedures dict ated by Rule 24(a)(5), by virtue of the fact that its most recent re enactment postdates th at of § 1915(a)(3).” Rolland , 497 F.3d at 1078.6 CONCLUSION For the reasons stated, we deny Crowe a COA, deny her ifp status, and dismiss the appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge