Vue v. Dowling, 17-6213

In 1998 Ong Vue pled no contest in Oklahoma to first-degree murder and two counts of shooting with intent to kill; he was sentenced to life plus two 20-year terms and did not file a direct appeal.
Trial counsel moved to modify the sentence; the state court granted modification in September 1998 (adjusting concurrency of sentences).
Vue sought state post-conviction relief in 2016, which was denied and affirmed by the Oklahoma Court of Criminal Appeals.
In August 2016 Vue filed in federal district court (styled § 2241 but construed in part as § 2254); the district court dismissed his habeas petition as untimely under AEDPA and denied equitable tolling. The district court also denied leave to proceed ifp on appeal and declined a COA.
Vue sought authorization for successive § 2254 claims earlier; the Tenth Circuit previously denied one request and treated another as unnecessary, allowing him to file a § 2254 application in district court.
The Tenth Circuit panel reviewed the denial of equitable tolling and the COA request, concluding Vue filed 17 years after his conviction became final and failed to show diligence or extraordinary circumstances to justify equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Vue's § 2254 petition is time-barred under AEDPA	Vue contends his petition should be tolled because his attorney failed to file a timely appeal or a motion to withdraw his plea, causing delay	The State contends AEDPA’s one-year limitation ran from June 1998 and Vue offers no proof his attorney’s conduct prevented timely filing	Petition is time-barred; Vue filed 17 years after conviction became final
Whether equitable tolling applies	Vue argues attorney negligence (assurance of appeal) amounts to extraordinary circumstances warranting tolling	The State argues attorney negligence here is not shown to be extraordinary and Vue lacked diligence over 17 years	Equitable tolling denied; Vue failed to show diligence or extraordinary circumstances
Whether a Certificate of Appealability (COA) should issue	Vue seeks COA to appeal the procedural dismissal	The State argues reasonable jurists would not debate the procedural ruling	COA denied because reasonable jurists would not debate the denial of equitable tolling
Whether Vue’s ancillary motions should proceed	Vue moved to certify a question to the Oklahoma Supreme Court and sought standing as a class member	The State did not oppose dismissal as moot given appellate disposition	Motions dismissed as moot

Miller-El v. Cockrell, 537 U.S. 322 (2003) (standards for issuing a certificate of appealability)
Slack v. McDaniel, 529 U.S. 473 (2000) (COA standards when dismissal is on procedural grounds)
Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling requires diligence and extraordinary circumstances; attorney negligence may qualify only in extraordinary cases)
Burger v. Scott, 317 F.3d 1133 (10th Cir. 2003) (standard of review: abuse of discretion for equitable tolling rulings)
Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) (petitioner bears burden to prove entitlement to equitable tolling)
Dulworth v. Jones, 496 F.3d 1133 (10th Cir. 2007) (application of Slack where dismissal is on procedural grounds)
Ong Vue v. Allbaugh, 682 F. App’x 636 (10th Cir. 2017) (prior Tenth Circuit disposition addressing related filings and procedural history)
Erickson v. Pardus, 551 U.S. 89 (2007) (pro se filings are construed liberally)
United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) (limits of liberal construction for pro se litigants)