FILED

United States Court of Appeals

Tenth Circuit

March 18, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TOMMY ARROWGARP,

Defendant - Appellant.

No. 13-4154

(D.C. Nos. 2:13-CV-00363-DB and

2:03-CR-00549-DB-1)

(D. Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

Tommy Arrowgarp, an inmate proceeding pro se, was convicted of three

federal crimes stemming from his sexual abuse and assault of a minor. On direct

review we affirmed his convictions. United States v. Arrowgarp, 253 F. App’x

790 (10th Cir. 2007). Earlier this year Mr. Arrowgarp filed in the district court a

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. 

The district court denied this motion as untimely and not warranting equitable

tolling, and denied a motion for an evidentiary hearing as moot. 

*

 This order is not binding precedent except under the doctrines of law of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.
Mr. Arrowgarp now appeals, arguing that equitable tolling is warranted and

that the district court erred in failing to grant him an evidentiary hearing. A

certificate of appealability (“COA”) is a prerequisite to pursuing § 2255 relief in

this court. United States v. Harper, 545 F.3d 1230, 1231 (10th Cir. 2008). 

Because he lacks a COA, we will construe Mr. Arrowgarp’s appeal as an

application for the needed certificate. See Davis v. Newton-Embry, 478 F. App’x

525, 526 (10th Cir. 2012); United States v. Gerhartz, 303 F. App’x 601, 603 (10th

Cir. 2008). 

We may issue a COA only if Mr. Arrowgarp has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where,

as here, the district court dismissed the case on procedural grounds, Mr.

Arrowgarp “must also show that ‘jurists of reason would find it debatable’

whether his claim was time-barred.” Garcia v. Archuleta, 253 F. App’x 802, 803

(10th Cir. 2007) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). This he

cannot do.

Motions for relief under 28 U.S.C. § 2255 must be filed within one year of

the later of, as pertinent here, “the date on which the judgment of conviction

becomes final” or “the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due diligence.” 28

U.S.C. § 2255(f)(1), (4). The judgment in this case was entered on November 8,

2007 and Mr. Arrowgarp was aware of the defects he alleges of his counsel well

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before that time. The district court determined Mr. Arrowgarp had until

January 8, 2009 to file his § 2255 motion. He filed on May 20, 2013, more than

four years late.

Mr. Arrowgarp argues that he is entitled to equitable tolling of the

limitations period because his attorney failed to inform him of this court’s

decision affirming his conviction and advised him to be patient because appellate

decisions take time. 

Equitable tolling is a rare remedy reserved for “exceptional circumstances.” 

Broadus v. Hartley, 345 F. App’x 345, 349 (10th Cir. 2009); Burger v. Scott, 317

F.3d 1133, 1141 (10th Cir. 2003). It is only available when an inmate shows that

he (1) diligently pursued his claims, and (2) “demonstrates that the failure to

timely file was caused by extraordinary circumstances beyond his control.” 

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Mr. Arrowgarp fails on

both counts.

Even assuming, without deciding, that Mr. Arrowgarp’s attorney was

negligent and failed to inform him of this court’s prior decision, under this court’s

teachings such conduct “will rarely qualify as an extraordinary circumstance

meriting equitable tolling, because ‘clients, even if incarcerated, must “vigilantly

oversee,” and ultimately bear responsibility for, their attorneys’ actions or

failures.’” Trujillo v. Tapia, 359 F. App’x 952, 955 (10th Cir. 2010) (quoting

Fleming v. Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007)). Particularly

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egregious attorney misconduct may entitle a petitioner to equitable tolling, but

“an attorney’s mere alleged failure to inform a client of the date on which his

appeal was denied falls well short of that threshold.” Id. at 955; see also

Broadus, 345 F. App’x at 348-49; United States v. Aros, 216 F. App’x 754, 756

(10th Cir. 2007); Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 463 (6th

Cir. 2012); LaCava v. Kyler, 398 F.3d 271, 276-77 (3d Cir. 2005); Cousin v.

Lensing, 310 F.3d 843, 848-49 (5th Cir. 2002). Yet that is all we have alleged

here.

Even were we to assume Mr. Arrowgarp’s attorney committed error and

that error was exceptional, Mr. Arrowgarp still would fail because he has not

shown that he diligently pursued his claims within the meaning of our precedents. 

Mr. Arrowgarp alleges only that he and his family contacted his lawyer and the

public defender’s office. Merely seeking the status of his case, without more

about the regularity of such inquiries, is not diligent pursuit. Further, even after

learning the result of his appeal Mr. Arrowgarp took almost a year to file his

§ 2255 motion in the district court. Accordingly, we must agree with the district

court that Mr. Arrowgarp is not entitled to equitable tolling of the one-year

limitations period. This resolution did not require discovery and the district court

was within its discretion to deny a hearing and deem the motion for an evidentiary

hearing moot.

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Because the filing was late and equitable tolling not available to extend the

time in which Mr. Arrowgarp could file a petition under § 2255, reasonable jurists

could not debate whether his petition was time barred. We deny his application

for a COA and dismiss this appeal. 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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