September 16, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF… v. Wyoming Department of Corrections Warden, also known as Michael Pacheco

FILED
United States Court of Appeals
Tenth Circuit
September 16, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
STEPHEN TARANOVICH,
Petitioner - Appellant,
v.
WYOMING DEPARTMENT OF
CORRECTIONS WARDEN, also
known as Michael Pacheco;
WYOMING ATTORNEY GENERAL,
Respondents - Appellees.
No. 21-8039
(D.C. No. 0:21-CV-00115-ABJ)
(D. Wyo.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
Petitioner, Stephen Taranovich, a Wyoming state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) so he can appeal the district
court’s dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from
a final order disposing of a § 2254 petition unless the petitioner first obtains a
COA). In 2018, Taranovich was convicted of involuntary manslaughter and
sentenced as a habitual criminal pursuant to Wyo. Stat. Ann. § 6-10-201. In
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2021, he filed a § 2254 habeas corpus petition with the United States District
Court for the District of Wyoming.
The district court dismissed the § 2254 petition as untimely, concluding
consideration of the ineffective assistance claims raised therein was time-barred
because the petition was filed after the expiration of the limitations period
established by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C. § 2244(d) (setting forth a one-year statute of
limitations for § 2254 petitions). Because Taranovich did not file a direct appeal,
the district court concluded his state conviction became final on November 8,
2018. Thus, he had one year from that date to file his § 2254 habeas petition, but
did not file it until June 10, 2021.
The district court concluded Taranovich was not entitled to statutory
tolling of the limitations period under 28 U.S.C. § 2244(d)(2). See Fisher v.
Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (holding there is no statutory
tolling for time spent in state post-conviction proceedings if relief is not sought
until after the one-year AEDPA limitations period has expired). The district
court also rejected the proposition Taranovich was entitled to equitable tolling of
the AEDPA limitations period, concluding he failed to show an extraordinary
circumstance prevented him from filing his petition and further failed to show he
diligently pursued his rights. Lawrence v. Florida, 549 U.S. 327, 336 (2007)
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(“To be entitled to equitable tolling, [the petitioner] must show (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” (quotation omitted)).
To be entitled to a COA, Taranovich must show “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, 484-85 (2000) (holding that when a
district court dismisses a habeas petition on procedural grounds, a petitioner is
entitled to a COA only if he shows both that reasonable jurists would find it
debatable whether he had stated a valid constitutional claim and debatable
whether the district court’s procedural ruling was correct). This court reviews
the district court’s decision on equitable tolling of the limitations period for
abuse of discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Our review of the record demonstrates that the district court’s dismissal of
Taranovich’s § 2254 petition as untimely is not deserving of further proceedings
or subject to a different resolution on appeal. The record fully supports the
district court’s conclusion that Taranovich failed to demonstrate entitlement to
either statutory or equitable tolling.
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Because Taranovich has not made a substantial showing of the denial of a
constitutional right, we deny his request for a COA and dismiss this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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