UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LYNDAL D. RITTERBUSH, 

 Petitioner - Appellant, 

v. 

LARRY BENZON, 

 Respondent - Appellee. 

No. 19-4074 

(D.C. No. 2:17-CV-00913-RJS) 

(D. Utah) 

_________________________________ 

ORDER DENYING CERTIFICATE 

OF APPEALABILITY 

_________________________________ 

Before HOLMES, MURPHY, and CARSON, Circuit Judges. 

_________________________________ 

This matter is before the court on Lyndal D. Ritterbush=s pro se request for a 

certificate of appealability (ACOA@). Ritterbush seeks a COA so he can appeal the district 

court=s dismissal, on timeliness grounds, of his 28 U.S.C. ' 2254 habeas petition. See 28 

U.S.C. ' 2253(c)(1)(A) (providing no appeal may be taken from Aa final order in a habeas 

corpus proceeding in which the detention complained of arises out of process issued by a 

State court@ without first obtaining a COA); id. ' 2244(d)(1) (setting out a one-year 

statute of limitations on ' 2254 petitions, running from the date on which the conviction 

became final). Because Ritterbush has not Amade a substantial showing of the denial of a 

constitutional right,@ id. ' 2253(c)(2), this court denies his request for a COA and 

dismisses this appeal. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 16, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

In 1984, Ritterbush pleaded guilty in Utah state court to attempted aggravated 

sexual abuse of a child, a first degree felony. On November 23, 1984, the trial court 

sentenced him to a term of imprisonment of from five years to life. Ritterbush filed the 

instant ' 2254 habeas petition in 2017. Upon the state of Utah=s motion, the district court 

dismissed Ritterbush=s petition as untimely. In so doing, the district court noted that 

because Ritterbush=s conviction became final before Congress passed the Antiterrorism 

and Effective Death Penalty Act of 1996, Ritterbush had to file his federal habeas petition 

within one year of April 24, 1996. See Gibson v. Klinger, 232 F.3d 799, 803, 808 (10th 

Cir. 2000). Instead, Ritterbush filed his ' 2254 petition some twenty-one years later. 

The district court further noted Ritterbush was not entitled to statutory tolling because he 

did not file a state-court request for collateral relief within the relevant time period. See

28 U.S.C. ' 2244(d)(2); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). 

Finally, the district court determined Ritterbush had not demonstrated the kind of 

extraordinary circumstances that would come close to equitably tolling the extreme 

twenty-year delay in the filing of his habeas petition. See Al-Yousif v. Trani, 779 F.3d 

1173, 1179 (10th Cir. 2015) (holding that A[e]quitable tolling is a rare remedy to be 

applied in unusual circumstances@ (quotation omitted)). 

The granting of a COA is a jurisdictional prerequisite to Ritterbush=s appeal from 

the dismissal of his ' 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To 

be entitled to a COA, he must make Aa substantial showing of the denial of a 

constitutional right.@ 28 U.S.C. ' 2253(c)(2). To make the requisite showing, he must 

demonstrate Areasonable jurists could debate whether (or, for that matter, agree that) the 
3 

petition should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.@ Miller-El, 537 U.S. at 336 

(quotations omitted). When a district court dismisses a ' 2254 motion on procedural 

grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists 

would find it debatable whether he had stated a valid constitutional claim and debatable 

whether the district court=s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 

473, 484-85 (2000). In evaluating whether Ritterbush has satisfied his burden, this court 

undertakes Aa preliminary, though not definitive, consideration of the [legal] framework@

applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Ritterbush need 

not demonstrate his appeal will succeed to be entitled to a COA, he must Aprove 

something more than the absence of frivolity or the existence of mere good faith.@ Id.

(quotations omitted). As a further overlay on this standard, we review for abuse of 

discretion the district court=s decision that Ritterbush is not entitled to have the limitations 

period set out in ' 2244(d)(1) equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141 

(10th Cir. 2003). 

Having undertaken a review of Ritterbush=s appellate filings, the district court=s 

order of dismissal, and the entire record before this court pursuant to the framework set 

out by the Supreme Court in Miller-El and Slack, we conclude Ritterbush is not entitled 

to a COA. The district court=s resolution of Ritterbush=s ' 2254 motion is not deserving 

of further proceedings or subject to a different resolution on appeal. In so concluding, 

there is no need for this court to repeat the cogent and convincing analysis set out in the 

district court=s order. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017) (holding that the 
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process of resolving whether a petitioner is entitled to a COA should not devolve into a 

determination of the merits). Accordingly, this court DENIES Ritterbush=s request for a 

COA and DISMISSES this appeal. 

ENTERED FOR THE COURT 

Michael R. Murphy 

Circuit Judge