UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TERENCE L. THOMAS, 

 Defendant - Appellant. 

No. 20-3224 

(D.C. Nos. 6:19-CV-01211-EFM & 

6:16-CR-10034-EFM-1) 

(D. Kan.) 

_________________________________ 

ORDER

_________________________________ 

Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges. 

_________________________________ 

Mr. Terence L. Thomas was convicted in federal court on charges of 

robbing a bank and brandishing a firearm during and in relation to a Hobbs 

Act robbery. 18 U.S.C. §§ 2113(a), 924(c)(1). Though Mr. Thomas did not 

appeal, he moved to vacate his sentence under 28 U.S.C. § 2255. The 

district court denied relief, and he wants to appeal. To do so, however, he 

needs a certificate of appealability. United States v. Gonzalez, 596 F.3d 

1228, 1241 (10th Cir. 2010). We decline to issue a certificate. 

 This order does not constitute binding precedent except under the 

doctrines of law of the case, res judicata, and collateral estoppel. But the 

order may be cited for its persuasive value if otherwise appropriate. See 

Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 24, 2021

Christopher M. Wolpert 

Clerk of Court
2 

To obtain a certificate, Mr. Thomas must show that reasonable jurists 

would find the district court’s resolution debatable or wrong. Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). But Mr. Thomas has not made this 

showing. 

He asserted six claims in district court: 

1. The district court had improperly departed upward from the 

guideline range on his robbery sentence. 

2. He should have been allowed to withdraw his guilty plea based 

on ineffective assistance of counsel and prosecutorial 

misconduct. 

3. His sentence had been improperly calculated based on Johnson 

v. United States, 576 U.S. 591 (2015), and United States v. 

Davis, 139 S. Ct. 2319 (2019). 

4. He had been improperly forced to obtain legal representation. 

5. When pleading guilty, he had not known that his victims did 

not want him imprisoned. 

6. His counsel had refused to file a notice of appeal despite 

instructions to appeal. 

The district court concluded that five of the claims were time-barred. 

The sole exception was Mr. Thomas’s claim that the district court had 

improperly calculated the sentence under United States v. Davis, 139 S. Ct. 

2319 (2019). The court concluded that this claim was invalid on the merits. 

In seeking a certificate of appealability, Mr. Thomas does not 

question the district court’s reasoning. The shortcoming in his argument is 

understandable, for Mr. Thomas is acting pro se. Because he is acting pro 
3 

se, we liberally construe his request for a certificate of appealability. See 

Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002) (stating that we 

liberally construe a pro se petitioner’s request for a certificate of 

appealability). But we cannot construct arguments for Mr. Thomas. See 

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also In re 

Antrobus, 563 F.3d 1092, 1099 (10th Cir. 2009) (“Under our rules we are 

not permitted to invent arguments even for pro se litigants . . . .”). 

In claiming that his attorney refused to file a notice of appeal, Mr. 

Thomas states that his attorney had lied for 20 months. If the attorney had 

lied, Mr. Thomas might be entitled to equitable tolling. See Fleming v. 

Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (“[S]ufficiently egregious 

misconduct on the part of a habeas petitioner’s counsel may justify 

equitable tolling of the [28 U.S.C. § 2244(d)] limitations period.”). For

equitable tolling, Mr. Thomas bears the burden. Sigala v. Bravo, 656 F.3d 

1125, 1128 (10th Cir. 2011). But Mr. Thomas doesn’t say when he learned 

that his attorney had failed to file the notice of appeal. He has thus failed 

to develop a meaningful argument for tolling based on his attorney’s 

alleged lies. 

He not only failed to develop this argument on appeal but also 

forfeited it by failing to develop it in district court. In district court, Mr. 

Thomas said in his motion that he had “been in transit for the last 20 

months,” had tried to contact the attorney and “repeatedly asked” about 
4 

motions, but had “recently found out that [no appeal] was made on [his] 

behalf.” Motion Under 28 U.S.C. § 2255 at 12, United States v. Thomas, 

6:16-cr-10034-EFM-1, ECF. No. 38. But he did not say when he had 

learned of his attorney’s failure to file the notice of appeal. So Mr. Thomas 

not only failed to develop the issue on appeal but also forfeited this issue 

in district court. See Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir. 

2013). 

Mr. Thomas also argues that 

 he sent other filings and a letter, which the court clerk 

erroneously deemed illegible; and 

 his mental health problems prevented further diligence. 

But Mr. Thomas forfeited these arguments by failing to make them in 

district court. See id. 

Mr. Thomas makes no other arguments that could conceivably cast 

doubt on the district court’s reasoning. We thus deny his request for a 

certificate of appealability. In the absence of a certificate, we dismiss this 

matter. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge