*

 This order is not binding precedent except under the doctrines of law of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

April 16, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENJAMIN K. BANKS,

Petitioner-Appellant,

v.

TRAVIS TRANI, Warden, and

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents-Appellees.

No. 10-1043

(D.C. No. 1:09-cv-2173-ZLW)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Benjamin K. Banks was convicted in Colorado state court on 40 counts,

including violation of the Colorado Organized Crimes Act, conspiracy and

possession of controlled substances, forgery, theft, and computer crime. He was

sentenced to a prison term of eighty-four years. On direct review, the Colorado

Court of Appeals affirmed his conviction and the Colorado Supreme Court denied

his petition for a writ of certiorari on November 18, 2002.

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Mr. Banks then filed in state court a request for appointment of postconviction counsel on December 19, 2002. Counsel was appointed three months

later, but withdrew in December 2004, on the ground that she “could find no good

faith basis” for the claim Mr. Banks desired to bring — a claim of ineffective

assistance of counsel. Shortly thereafter, also in December 2004, Mr. Banks filed

a pro se motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c),

which the state trial court denied. The Colorado Court of Appeals affirmed that

decision and the Colorado Supreme Court denied certiorari. Mr. Banks later filed

a second motion for post-conviction relief that was again denied. On

September 11, 2009, Mr. Banks filed in federal district court the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court,

however, dismissed the petition as time-barred. 

Mr. Banks now seeks from us a certificate of appealability (“COA”) to

appeal the district court’s dismissal of his § 2254 petition. We may issue a COA

only if the petitioner makes a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court

dismisses a § 2254 petition on procedural grounds, we may issue a COA only if

“jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We

conclude that the district court was unquestionably correct in holding Mr. Banks’s

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petition time-barred, and thus deny his application for a COA and dismiss this

appeal.

A petitioner seeking federal habeas relief under § 2254 generally must

bring his motion within one year from the date on which his conviction “became

final by the conclusion of direct review or the expiration of the time for seeking

such review.” 28 U.S.C. § 2244(d)(1)(A). In Mr. Banks’s case, the Colorado

Supreme Court denied his petition for a writ of certiorari on November 18, 2002,

after which he had ninety days to seek review by the United States Supreme

Court. His one-year window to file a § 2254 petition, then, opened on

approximately February 18, 2003, and closed on approximately February 18,

2004. Mr. Banks filed his petition in federal district court on September 11,

2009, more than five years after that window closed. Accordingly, unless

something acted to toll the one-year limitations period, Mr. Banks’s petition was

plainly time-barred.

Mr. Banks makes two arguments for tolling the one-year limitations period. 

Neither is availing.

First, Mr. Banks claims his request for appointment of post-conviction

counsel in state court, filed on December 19, 2002, tolled the statute of

limitations. While it is certainly true that the one-year limitations period doesn’t

run while a properly filed application for state collateral review is pending, see 28

U.S.C. § 2244(d)(2), Mr. Banks’s request for post-conviction counsel doesn’t

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qualify as such. “A state post-conviction application is ‘properly filed’ if it

satisfies the State’s requirements for filing such a pleading.” Robinson v. Golder,

443 F.3d 718, 720 (10th Cir. 2006). In this case, as the district court observed,

Mr. Banks’s one-page request for appointment of post-conviction counsel “did not

state any factual or legal grounds for relief,” as Colo. R. Crim. P. 35(c) requires, 

but rather only sought counsel to draft a Rule 35 motion for him. App. at 213

(internal quotation marks omitted). As a result, and as the district court held, Mr.

Banks’s request for post-conviction counsel did not qualify as a properly filed

application for collateral relief under Colorado law and so did not toll the

limitations period for a § 2254 petition. Indeed, we have held other petitions

time-barred in circumstances materially identical to these. See, e.g., Pursley v. Al

Estep, 216 F. App’x 733, 734 (10th Cir. 2007) (unpublished) (holding that

petitioner’s motions for appointment of post-conviction counsel did not toll the

limitations period because they did not “state adequate factual or legal grounds

for relief, as required” by Colo. R. Crim. P. 35(c) (internal quotation marks

omitted)); Gilbert v. Reid, 217 F. App’x 762, 765 (10th Cir. 2007) (same). 

Second, Mr. Banks argues he is entitled to equitable tolling of the

limitations period because the delay in filing his Rule 35 motion was the fault of

his court-appointed counsel. Equitable tolling “is only available when an inmate

diligently pursues his claims and demonstrates that the failure to timely file was

caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223

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F.3d 1217, 1220 (10th Cir. 2000). After reviewing the record of this case, we

conclude that Mr. Banks can satisfy neither of these requirements.

Taking the extraordinary circumstances requirement first, even if we were

to assume without deciding that Mr. Banks is correct some attorney negligence

took place here, that will rarely qualify as an extraordinary circumstance meriting

equitable tolling under this court’s precedents because “clients, even if

incarcerated, must ‘vigilantly oversee,’ and ultimately bear responsibility for,

their attorneys’ actions or failures.” Fleming v. Evans, 481 F.3d 1249, 1255-56

(10th Cir. 2007) (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)). 

Particularly egregious attorney misconduct, such as repeated, deceitful assurances

that a habeas petition would soon be filed, may entitle a petitioner to equitable

tolling. See id. at 1256-57. But Mr. Banks does not make any such allegations in

this case, and so fails to establish the sort of extraordinary circumstances required

by our precedents for equitable tolling. 

Likewise, while Mr. Banks submits that he tried to pursue his federal

habeas claims, our case law requires that he “allege with specificity the steps he

took to diligently pursue his federal claims” in order to meet the diligence

requirement associated with equitable tolling. Yang v. Archuleta, 525 F.3d 925,

930 (10th Cir. 2008) (internal quotation marks omitted); see also Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998) (finding petitioner “provided no specificity

regarding the alleged . . . steps he took to diligently pursue his federal [habeas]

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claim” and concluding that petitioner “simply did not know about the [one-year]

limitation”); cf. Fleming, 481 F.3d at 1257 (finding that petitioner diligently

pursued his habeas claims when, in response to his counsel’s inaction, he drafted

his own petition for post-conviction relief, which he submitted to counsel for

review, in order to satisfy the one-year limitations period). Mr. Banks has failed

to do this. While he asserts that he promptly filed in state court a request for

post-conviction counsel upon the completion of direct review, he fails to detail

any steps taken after that request. Accordingly, we must agree with the district

court that Mr. Banks isn’t entitled to equitable tolling of the one-year limitations

period.

Because neither statutory nor equitable tolling served to extend the time in

which Mr. Banks could file a habeas petition under § 2254, reasonable jurists

could not debate whether his petition was time-barred. Accordingly, we deny his

application for a COA and dismiss this appeal. 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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