United States v. May

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IMAN MAY,

Defendant - Appellant.

No. 20-1204
(D.C. Nos. 1:17-CV-01792-REB &
1:15-CR-00155-REB-DW-1)
(D. Colo.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
*

_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Pro se petitioner Iman May seeks a certificate of appealability (“COA”) to appeal
the district court’s denial of his 28 U.S.C. § 2255 motion. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2255(d), we deny a COA and dismiss the appeal.
I
May pled guilty to two counts of abusive sexual contact in Indian Country, in
violation of 18 U.S.C. §§ 2244(a)(1), (b), and 1153. The district court sentenced him to
144 months’ imprisonment and entered its final judgment on March 1, 2016. May did
not file a direct appeal. On July 24, 2017, May filed this § 2255 motion. The district

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This order is not binding precedent except under the doctrines of law of the case,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

August 13, 2020

Christopher M. Wolpert
Clerk of Court
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2

court denied his motion as time-barred and declined to grant a COA. May now seeks a
COA from this court.
II
Because May proceeds pro se, we liberally construe his pleadings but “do not
assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)
(quotation omitted). A petitioner may not appeal the denial of habeas relief under § 2255
without a COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To
make this showing, May must demonstrate “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Under the Antiterrorism and Effective Death Penalty Act, § 2255 motions are
subject to a one-year limitations period. 28 U.S.C. § 2244(d). This period generally runs
from the date a conviction becomes final. See § 2244(d)(1). May’s conviction became
final when his deadline to file a direct appeal expired—on March 15, 2016, fourteen days
after the entry of final judgment. See Fed. R. App. P. 4(b)(1)(A). The limitations period
expired one year later. May filed this § 2255 motion in July 2017, several months after
the expiration of the limitations period. Absent equitable tolling, May’s petition was
therefore untimely.
Equitable tolling is “available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary circumstances
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beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). It is also
appropriate if “a prisoner is actually innocent.” Gibson v. Klinger, 232 F.3d 799, 808
(10th Cir. 2000). On appeal, May does not argue that he diligently pursued his claims or
that he is actually innocent.
1
Accordingly, any argument for the application of equitable
tolling is waived. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues
not raised in the opening brief are deemed abandoned or waived.”).
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal. May’s
motion to proceed in forma pauperis is GRANTED.
Entered for the Court

Carlos F. Lucero
Circuit Judge

1
May argued before the district court that he was actually innocent, but he
abandons this argument on appeal.
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