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    Rutti v. Wyoming Attorney General, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit denied James Patrick Rutti Jr.'s application for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition as time-barred. The district court had previously dismissed Rutti's first habeas petition without prejudice at his request. When Rutti filed a second habeas petition years later, the district court found it was untimely as he failed to demonstrate extraordinary circumstances warranting equitable tolling of the statute of limitations. The Tenth Circuit agreed and denied Rutti's application, finding reasonable jurists would not debate the district court's dismissal of the petition as time-barred.

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    Rutti v. Wyoming Attorney General, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit denied James Patrick Rutti Jr.'s application for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition as time-barred. The district court had previously dismissed Rutti's first habeas petition without prejudice at his request. When Rutti filed a second habeas petition years later, the district court found it was untimely as he failed to demonstrate extraordinary circumstances warranting equitable tolling of the statute of limitations. The Tenth Circuit agreed and denied Rutti's application, finding reasonable jurists would not debate the district court's dismissal of the petition as time-barred.

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    Filed: 2010-09-03 Precedential Status: Non-Precedential Docket: 10-8002

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    The United States Court of Appeals for the Tenth Circuit denied James Patrick Rutti Jr.'s application for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition as time-barred. The district court had previously dismissed Rutti's first habeas petition without prejudice at his request. When Rutti filed a second habeas petition years later, the district court found it was untimely as he failed to demonstrate extraordinary circumstances warranting equitable tolling of the statute of limitations. The Tenth Circuit agreed and denied Rutti's application, finding reasonable jurists would not debate the district court's dismissal of the petition as time-barred.

    Copyright:

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    27 views3 pages

    Rutti v. Wyoming Attorney General, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied James Patrick Rutti Jr.'s application for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition as time-barred. The district court had previously dismissed Rutti's first habeas petition without prejudice at his request. When Rutti filed a second habeas petition years later, the district court found it was untimely as he failed to demonstrate extraordinary circumstances warranting equitable tolling of the statute of limitations. The Tenth Circuit agreed and denied Rutti's application, finding reasonable jurists would not debate the district court's dismissal of the petition as time-barred.

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    September 3, 2010

    TENTH CIRCUIT

    Elisabeth A. Shumaker
    Clerk of Court

    JAMES PATRICK RUTTI, JR.,


    PetitionerAppellant,

    No. 10-8002

    v.

    (D. Wyoming)

    WYOMING ATTORNEY GENERAL;


    KENNETH L. KELLER, Wyoming
    Department of Corrections Honor
    Conservation Camp Warden, in his
    official capacity,

    (D.C. No. 2:07-CV-00138-CAB)

    RespondentsAppellees.

    ORDER *

    Before KELLY, McKAY, and LUCERO, Circuit Judges.

    Petitioner seeks a certificate of appealability to appeal the district courts


    denial of his 28 U.S.C. 2254 habeas petition. Petitioner pled guilty in Wyoming
    state court to third-degree sexual assault and sexual exploitation of a child by
    delivering child pornography. His conviction was affirmed on direct appeal, and
    his state court habeas petitions were denied. Subsequently, and only a few days

    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.

    before the applicable one-year statute of limitations was set to expire, see 28
    U.S.C. 2244(d)(1), Petitioner filed a 2254 habeas corpus petition in the
    federal district court. Some months later, he filed a motion requesting voluntary
    dismissal of the petition without prejudice. The district court granted this motion.
    Approximately four months later, Petitioner filed a motion to reinstate the
    dismissed habeas petition. The district court denied the motion to reinstate, and
    Petitioner filed the instant federal petition. The district court then denied this
    petition as time-barred. The court noted that, even if it tolled the period when
    Petitioners first habeas petition was pending, a total of 482 untolled days would
    still have passed before the instant petition was filed. The court concluded that
    Petitioner had not demonstrated extraordinary circumstances warranting equitable
    tolling, and the court therefore dismissed the petition as time-barred.
    In his application for a certificate of appealability, Petitioner argues that he
    is entitled to equitable tolling because, inter alia, (1) this petition relates back to
    his original petition, (2) he relied on the district courts representation that he
    could re-file, (3) he was convicted under an unconstitutional statute and thus is
    actually innocent of any crime, and (4) he diligently pursued his claims. As for
    Petitioners first argument, a 2254 petition cannot relate back to a previously
    filed petition that has been dismissed without prejudice because there is nothing
    for the current petition to relate back to. Marsh v. Soares, 223 F.3d 1217, 1219
    (10th Cir. 2000) (internal quotation marks omitted). As for Petitioners second
    -2-

    argument, the record reflects that the first petition was dismissed without
    prejudice to re-filing, but the district court never represented that a re-filed
    petition would be free from all potential statutory bars. Moreover, Petitioners
    apparent ignorance regarding the legal consequences of a dismissal without
    prejudice simply does not justify equitable tolling under our precedent. See id. at
    1220. As for Petitioners third argument, we will not address it because he did
    not raise this argument for tolling in the district court. See Gibson v. Klinger, 232
    F.3d 799, 808 (10th Cir. 2000). Finally, as for Petitioners fourth argument, we
    note that a petitioners diligent pursuit of claims only warrants equitable tolling if
    the petitioner also demonstrates that extraordinary circumstances beyond his
    control caused his failure to comply with the statute of limitations, see Marsh,
    223 F.3d at 1220, and we are not persuaded that Petitioner has done so here.
    For the foregoing reasons and for substantially the same reasons stated by
    the district court, we conclude that Petitioner has not shown that reasonable
    jurists would debate whether the district court was correct in dismissing the
    petition as time-barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We
    therefore DENY the application for a certificate of appealability and DISMISS
    the appeal. All other pending motions are also DENIED.
    ENTERED FOR THE COURT

    Monroe G. McKay
    Circuit Judge
    -3-

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