UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JEROME LYNN HOLLY, 

 Petitioner - Appellant, 

v. 

ERASMO BRAVO, 

 Respondent - Appellee. 

No. 14-2184 

(D.C. No. 1:12-CV-00952-MCA-WPL) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges. 

 

 Jerome Lynn Holly was convicted of first-degree murder and attempted 

first-degree murder following a jury trial in New Mexico. On January 29, 2009, the 

New Mexico Supreme Court affirmed his convictions, and he did not seek further 

direct review. He then waited nearly two years to file two successive state habeas 

petitions challenging his convictions. After these state petitions were denied, he 

eventually filed the federal habeas petition underlying this appeal. The magistrate 

 

*

 After examining the briefing and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment 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 19, 2015

Elisabeth A. Shumaker 

Clerk of Court

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judge noted the facial untimeliness of the petition, but granted Mr. Holly a hearing 

on equitable tolling and appointed the federal public defender to proceed on his 

behalf.1

 The district court ultimately adopted the magistrate judge’s recommendation 

to deny equitable tolling and dismiss the petition as barred by the one-year deadline 

in 28 U.S.C. § 2244(d). Seeking to appeal that determination, Mr. Holly’s counsel 

has submitted a brief including a request for a certificate of appealability (COA) 

pursuant to 28 U.S.C. § 2253(c). We grant a COA and, upon full consideration of the 

arguments in Mr. Holly’s appeal brief, affirm the order of the district court. 

Because the district court’s ruling rested on procedural grounds, Mr. Holly 

must show 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, 484 (2000). In applying this standard, we are mindful that 

“a COA does not require a showing that the appeal will succeed.” Miller-El v. 

Cockrell, 537 U.S. 322, 337 (2003). While the matter is close, we conclude that the 

issue of equitable tolling here is “‘adequate to deserve encouragement to proceed 

 

1

 The magistrate judge calculated that the one-year limitations period for 

commencing federal habeas proceedings expired on May 14, 2010. Mr. Holly does 

not dispute that determination. Because this deadline passed some nineteen months 

before he first filed for state habeas relief, the provision in § 2244(d)(2) tolling the 

limitations period during the pendency of an application for state post-conviction or 

other collateral review never came into play. See Clark v. Oklahoma, 468 F.3d 711, 

714 (10th Cir. 2006). Thus, Mr. Holly must rely on equitable tolling principles to 

save his belatedly filed habeas petition. 

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further’” under the Slack standard. Id. at 336 (quoting Slack, 529 U.S. at 484). We 

therefore grant a COA and proceed to the merits of the appeal in light of Mr. Holly’s 

appellate brief.2

 

 “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has 

been pursuing his rights diligently, and (2) that some extraordinary circumstances 

stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 

(2010) (internal quotation marks omitted). Thus, “equitable tolling is appropriate 

only in rare and exceptional circumstances.” Sigala v. Bravo, 656 F.3d 1125, 1128 

(10th Cir. 2011) (internal quotation marks omitted). The magistrate judge discussed 

at length the circumstances surrounding Mr. Holly’s delay and his unpersuasive 

attempt to excuse that delay by attributing it all to the inaction of one of his attorneys 

rather than his own failure to pursue his rights diligently. Without repeating that 

entire discussion, we set out those salient facts that convince us of the correctness of 

the district court’s decision. 

Mr. Holly hired attorney Gary Hill to represent him through trial, appeal, and 

any subsequent proceedings. Mr. Hill contracted with another attorney to handle the 

trial, did not appear for sentencing, and allowed a public defender to handle the 

appeal. In his federal habeas petition, Mr. Holly gave a very specific excuse for his 

years of delay in challenging his conviction following his appeal: Mr. Hill told him 

 

2

 Because we conclude that the arguments advanced by Mr. Holly ultimately do 

not warrant appellate relief, we have not ordered the respondent to file an answer 

brief. 

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he had filed a motion for rehearing, after which Mr. Hill failed to answer or return his 

calls. Mr. Holly’s testimony at the evidentiary hearing was different and much more 

vague. He stated that as a general matter Mr. Hill never explained what he was going 

to do and that he (Mr. Holly) never asked for such explanations. Mr. Hill just gave 

broad assurances that he would get Mr. Holly released, possibly by hiring yet another 

attorney to work on his case. As for the rehearing motion in particular, Mr. Holly 

testified that his public defender had mentioned possibly considering such a motion 

and that Mr. Hill had led him to believe that Mr. Hill was going to call the public 

defender to discuss that. The public defender, who testified at the evidentiary 

hearing, denied making any comments about a possible rehearing motion—a point 

supported by contemporaneous notes the public defender kept. In any event, after the 

time for rehearing passed and the appellate mandate issued, the public defender sent a 

letter to Mr. Holly informing him that with the issuance of the mandate the appeal 

was officially over and that state and federal habeas proceedings were his remaining 

means of challenging his conviction. 

The public defender also explained to Mr. Holly the time limits on seeking 

federal habeas relief. Yet, as far as Mr. Holly’s testimony indicates, Mr. Holly never 

discussed these time limits with Mr. Hill, never directed Mr. Hill to file a state or 

federal habeas petition, was never told that Mr. Hill had filed a petition, and indeed 

never even asked whether Mr. Hill had filed or would file a petition. Nor did 

Mr. Holly contact the courts to make any inquiries in this regard or otherwise take 

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steps to ensure specifically that Mr. Hill was acting to preserve his right to file for 

habeas relief. He simply relied on vague assurances that Mr. Hill was in some 

unspecified fashion working on his case. Over time Mr. Hill became more and more 

reclusive. Eventually, some two and a half years after his conviction had been 

affirmed on appeal, Mr. Holly began pursuing state habeas relief himself. Following 

the failure of his second state petition, he belatedly commenced the instant federal 

habeas proceeding. 

Mr. Holly contends that these circumstances warrant equitable tolling of the 

habeas limitations period, citing a number of cases in which equitable tolling was 

deemed warranted, or at least arguably warranted, based on counsel’s failure to 

timely pursue postconviction remedies. But the circumstances noted above sharply 

distinguish Mr. Holly’s situation from those in the cited cases, where counsel failed 

to pursue particular remedies to preserve habeas rights as specifically promised to 

petitioners who made affirmative efforts to see that those specific promises were kept. 

Cf. Holland, 560 U.S. at 636-43; Fleming, 481 F.3d at 1255-57; Doe v. Busby, 

661 F.3d 1001, 1009-10, 1012-13 (9th Cir. 2011); United States v. Martin, 408 F.3d 

1089, 1090-91 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003); 

United States v. Wynn, 292 F.3d 226, 228-29 (5th Cir. 2002). Mr. Holly emphasizes 

that he remained in general contact with Mr. Hill, in part through two mutual friends, 

but the vagary of his communication with Mr. Hill—whom he (and the friends) 

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deliberately avoided asking specific questions—undercuts its import for purposes of 

demonstrating diligence and reasonable reliance. 

Mr. Holly characterizes Mr. Hill as a friend and contends that this justified his 

inattentive reliance on Mr. Hill. He cites no authority holding that misplaced or 

undue professional reliance may be excused for such personal reasons. In any event, 

he did not make this argument in his objections to the magistrate judge’s 

recommendation and we deem the point forfeited under our firm waiver rule. See

Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir. 2009). See also United States v. 

Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (adhering to general waiver rules in 

deciding request for COA). Mr. Holly also contends that counsel’s failure to provide 

his case file when he decided to pursue state habeas relief is a separate act of 

unprofessionalism lending additional support to his argument for equitable tolling. 

This point was likewise omitted from his objections to the magistrate judge’s 

recommendation. We further note that, given the expiration of the federal habeas 

limitations period well before Mr. Holly began work on his state habeas petition, 

counsel’s failure to turn over the file did not adversely affect, much less prevent, his 

ability to timely file the habeas petition, as required by Holland, 560 U.S. at 649. 

The request for COA is granted and the order of the district court is affirmed. 

 Entered for the Court 

 John C. Porfilio 

 Circuit Judge 

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