UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAVID W. TUNGET, Defendant - Appellant. No. 18-1292 (D.C. Nos. 1:17-CV-02044-PAB & 1:10-CR-00458-PAB-1) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ David Tunget, a federal prisoner p roceeding pro se, seeks a cer tificate of appealability (COA) to challenge the district court’s denial of his motion under 28 U.S.C § 2255 t o vacate, set aside, or correct his sentence. He also seeks leave to proceed in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291, we deny his requests for a COA and to proceed IFP and dismiss this matter. BACKGROUND In November 2010, Tunget pleade d guilty to one count of possess ion of child pornography, in viola tion of 18 U.S.C. § 2252(a)(4)(B) and (b)( 2). The district court

 This order is not binding prece dent except under the doctrine s of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 

### February 28, 2019
Elisabeth A. Shumaker Clerk of Court2 sentenced him to 188 months in pr ison and entered judgment of c onviction on March 16, 2011. Tunget did not appeal. More than four years later, in Au gust 2015, Tunget filed a moti on to reopen his case under Fed. R. Civ. P. 60(b)(6), asserting prosecutorial mi sconduct, ineffective assistance of counsel, improper a pplication of sentencing enhan cements, and other grounds for relief. Tunget also alleged equitable tolling appl ied to these claims because he had suffered almost two years of mental confusion and other symptoms of withdrawal from Xanax after prison official s discontinued his prescription to the medication when he entered prison. The district cour t dismissed Tunget’s motion f or lack of jurisdiction. In so doing, it declined to rechar acterize it as a motion for reli ef under § 2255, noting such a motion would, at least facially , be time-barred under § 2255(f) ’s one-year statute of limitations. Meanwhile, in July 2013, Tunget w rote the attorney who had repr esented him during plea negotiations and senten cing, asking that she send h im specified court records and “[a]ny other records which ma y be of aid to me in my pursui t of a just sentence reduction.” Supp. R. at 122. She did not respond, and Tunget made no further attempt to obtain records relating to his case until Septem ber 2015, short ly after his failed motion to reopen, when he alleges he sent his former attorney a letter re questing his case file. Tunget reports this letter was re turned as undeliverable, but t he record shows he reached his attorney by letter later tha t year and requested a copy of his case file. This time Tunget persisted in his efforts , but after numerous delays his attorney reported she could not locate his case file. By th is time the district court had appointed counsel to help3 Tunget secure his case file, and newly appointed counsel was ab le to obtain the court records, discovery, and present ence reports for his case from t he U.S. Attorney’s office. She sent these materials t o Tunget in May 2017. On August 24, 2017, Tunget filed his § 2255 motion, asserting t hree grounds for relief from his sentence: ineffective assistance of counsel, p rosecutorial misconduct, and errors by the district court in applying several sentencing enh ancements. He also argued in a separate motion that he wa s entitled to equitable tolling of the one-year statute of limitations to bring a § 2255 mo tion as a result of his Xanax w ithdrawal and his attorney’s failure to produce hi s case file. The district cour t denied the latter motion, holding Tunget was not entitled to equitable tolling because he had not diligently pursued his claims. The court further d enied Tunget’s § 2255 motion as untimely, and denied a COA. This appeal followed.
DISCUSSION Before he may appeal, Tunget must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA , Tunget must make “a substant ial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where a distr ict court denies the petitioner’s claims on procedural grounds, as was the case here , this requires two showings: that reasonable juris ts would debate (1) whether the applicant’s motion “states a valid claim of the denial o f a constitutional right,” and (2) “whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Tunget argues reasonable jurist s would find hi s constitutional claims to be at least4 debatable, but we need not reach this issue because reasonable jurists could not debate that the district court correctly held his § 2255 motion was un timely. 1 A defendant ordinarily must file a § 2255 motion within one yea r of the date his conviction becomes final. See 28 U.S.C. § 2255(f)(1). Tunget’s conviction became final on March 30, 2011, when the four teen-day period for filing a di rect appeal expired.
See United States v. Burch , 202 F.3d 1274, 127 8 (10th Cir. 2000) (expl aining conviction is final under § 2255 when appeal is no longer available); Fed. R. App. P. 4(b) (stating deadline for notice of appeal). Tunget’s motion was untimel y under § 2255(f)(1) because it was filed more than five years after this date. The district court also consider ed whether Tunget’s motion migh t be timely under § 2255(f)(4), based on his insisten ce that he could not bring h is § 2255 motion until he received his case file fro m his former attorney. 2 Section 2255(f)(4) provides a § 2255 motion can be brought wit hin one year of “the date on wh ich the facts supporting the claim or claims presented co uld have been discovered throug h the exercise of due

1 Because Tunget is acting pro se , we construe his filings libe rally, but do not act as his advocate. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).

2 The district court was skeptic al of this assertion for severa l reasons, including that information in his attorney ’s case file was not relevant t o Tunget’s prosecutorial misconduct and sentencing enhancem ent claims or essential to th e specific ineffective assistance of counsel claims he asserted, as evid enced by his a bility to present these claims in his § 2255 motion wit hout having reviewed his attorne y’s case file. The district court further noted there is au thority suggesting a petitioner’ s inability to obtain his case file or court documents does not justify tolling the period for seeking habeas relief. See R. Vol. 1 at 340-41 & 343 n.8 (citing cases). We do not reach these additional issues because we deny Tunget’s COA a pplication on other grounds.5 diligence.” The district court he ld this provision did not app ly because the facts supporting the claims Tunget ass erted in his § 2255 motion shou ld have been known to him when he was sentenced in 2011. 3 Tunget does not challenge this co nclusion, but essentially cont ends he did not recognize the significance of the se facts at the time of senten cing because he was on Xanax or later because of the men tal confusion he experienced d uring withdrawal from the medication. But even if these circumstances could overcome his undisputed knowledge of the relevant facts in 2011 (an issue we do not dec ide), Tunget represented in the district court that his X anax-related mental confusion c leared no later than July 2013, more than four years before he filed his § 2255 motion. Tunget also discussed key facts underlying his § 2255 moti on (such as that he pled nolo c ontendere instead of guilty to the state court conviction re lied upon by the district court in sentencing) in the motion to reopen he filed two years befo re his § 2255 motion. Under t hese circumstances, it is not debatable that Tunget knew th e facts supporting the claims he presented in his § 2255 motion more than one year before its August 2017 filing date, r endering his motion untimely under § 2255(f)(4) as well. Tunget contends his § 2255 motion was nonetheless timely becaus e he is entitled to equitable tolling of the statu te’s limitation period. “Gene rally, a litigant seeking equitable tolling bears the burd en of establishing two elements : (1) that he has been

3 Tunget’s claims in his § 2255 motion revolve around facts inc luded in his plea agreement and/or the Presentence Report that he argues were mis represented by the government, not properly challeng ed by his counsel, and/or misa pplied by the court in its sentencing calculations.6 pursuing his rights diligently, a nd (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). Tung et argued below that extraordinary circumstances exist ed because his Xanax withdrawa l symptoms prevented him from realizing he needed to file his own § 2255 motion unti l July 1, 2013, when he made his first record request to his former attorney, and becau se his attorney failed to provide those records or his case file as he later requested. But the district court held after careful analysis that even assuming Tunget’s alleged with drawal symptoms were sufficient grounds to toll the limitations period until July 1, 2013, he was not entitled to equitable tolling after this date because he failed to demonstr ate he diligently pursued his claims. Tunget argues reasonable jurists could debate this decision, ci ting his motion to reopen his case, filed in August 2015, and his e fforts to obtai n his case file as evidence that he diligently pur sued his claims. But there is no evidenc e in the record he took any action to pursue his claims in th e two years between his July 2 013 document request to his former attorney and his Au gust 2015 motion to reopen and su bsequent effort to obtain his case file from her. Nor does Tunget offer any explanation for this period of inaction or explain why he did not seek a ll or some of the documents he wished to review from other sources, such as the distr ict court or the U.S. Attorney’ s office. As a result, reasonable jurists could not de bate that the district court act ed within its discretion in deciding Tunget failed to dilige ntly pursue his record requests and claims throughout the relevant period. See United States v. Denny , 694 F.3d 1185, 1189, 1191-92 (10th Cir. 2012) (rejecting claim that attorn ey’s delay in forwarding case records warranted7 equitable tolling in part becau se petitioner did not show he di ligently tried to obtain the documents from the court or othe r sources). Hence, the distric t court’s denial of equitable tolling is not debatable.
CONCLUSION For the reasons stated above, we deny Tunget’s request for a CO A and dismiss this matter. We also deny his motion to proceed IFP on appeal because he failed to show “the existence of a reasoned, n onfrivolous argument on the law and facts in support of the issues raised on appeal.” Watkins v. Leyba , 543 F.3d 624, 627 (10t h Cir. 2008) (internal quotation marks omitted). Tunge t shall immediately pay the unp aid balance of the appellate filing fee.

Entered for the Court
Gregory A. Phillips Circuit Judge