Neeley v. Long: Tenth Circuit Reaffirms Rare Availability of Equitable Tolling for AEDPA Timeliness and Declines to Ground COA Denial on Firm-Waiver Rule

Introduction

In Neeley v. Long, No. 25-1131 (10th Cir. Oct. 27, 2025), a Tenth Circuit panel (Judges Hartz, Baldock, and Carson) denied a certificate of appealability (COA) to a Colorado state prisoner seeking federal habeas corpus relief under 28 U.S.C. § 2254. The panel also denied leave to proceed in forma pauperis and dismissed the appeal. The ruling—issued as an unpublished order with persuasive value—reaffirms two central features of federal habeas practice under the Antiterrorism and Effective Death Penalty Act (AEDPA):

The one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(A) is strictly enforced; equitable tolling is available only in rare and exceptional circumstances and requires diligence and extraordinary impediment.
Although the Tenth Circuit’s “firm waiver rule” generally bars appellate review when a party fails to file timely and specific objections to a magistrate judge’s recommendation, the panel declined to rely on that rule as an independent bar to a COA, instead denying the COA under the traditional Slack/Buck framework for procedural dismissals.

The petitioner, Suzanna Neeley, was convicted of first-degree murder and sentenced to life without parole. After her direct appeal concluded in 2005, she did not file a federal habeas petition until August 19, 2024—nearly 18 years after AEDPA’s one-year limitations period expired. She argued for equitable tolling based on long-running attorney ineffectiveness and other difficulties, but the panel held these circumstances did not meet the exceptionally high bar for tolling.

Summary of the Opinion

The Tenth Circuit denied a COA because no reasonable jurist could debate the district court’s procedural ruling that the § 2254 petition was untimely. The court:

Identified September 12, 2005 (the date the Colorado Supreme Court denied review), as the point at which the judgment became final for AEDPA purposes and calculated the one-year deadline as September 12, 2006.
Held that the August 19, 2024 § 2254 filing was untimely by almost 18 years.
Rejected equitable tolling because petitioner did not demonstrate diligence or “sufficiently egregious misconduct” by counsel, and because equitable tolling is reserved for “rare and exceptional circumstances.”
Noted petitioner’s untimely and non-specific objection to the magistrate judge’s recommendation, and the Tenth Circuit’s firm waiver rule, but declined to decide whether that rule independently bars a COA. Instead, it denied the COA under the standard set out in Slack v. McDaniel and Buck v. Davis.
Denied in forma pauperis and dismissed the matter without reaching the merits.

Detailed Analysis

Procedural Background and Timeline

2005-09-12: Colorado Supreme Court denies review of direct appeal; conviction becomes final under the panel’s calculation.
2006-09-12: AEDPA’s one-year deadline expires.
2014-01-21: Petitioner files state postconviction motion under Colo. R. Crim. P. 35(c) (roughly eight years after AEDPA’s deadline had already run).
2021-06-16: State district court denies Rule 35(c) relief; 2023-12-21: Colorado Court of Appeals affirms; 2024-06-10: Colorado Supreme Court denies review.
2024-08-19: Petitioner files § 2254 petition in federal district court; magistrate judge recommends dismissal as untimely; petitioner submits an untimely and non-specific letter instead of timely, specific objections.
District court dismisses with prejudice as untimely and denies COA; petitioner appeals.

Precedents and Authorities Cited and Their Roles

Fed. R. Civ. P. 72(b)(2): Establishes the 14-day period to file specific objections to a magistrate judge’s recommendation. Petitioner’s letter was filed 18 days after service and lacked specificity.
United States v. 2121 E. 30th St., 73 F.3d 1057 (10th Cir. 1996): The Tenth Circuit’s “firm waiver rule” requiring timely and specific objections to preserve appellate issues.
Wardell v. Duncan, 470 F.3d 954 (10th Cir. 2006); Morales-Fernandez v. INS, 418 F.3d 1116 (10th Cir. 2005): Recognize exceptions to the waiver rule in the interests of justice and when a pro se litigant is not warned of the need to object and the consequences of failure. Here, petitioner was warned, so exceptions did not apply.
United States v. Thyberg, 722 F. App’x 847 (10th Cir. 2018): Notes the Tenth Circuit has not decided whether the firm waiver rule provides an independent basis to deny a COA. The panel again declines to resolve that question.
Slack v. McDaniel, 529 U.S. 473 (2000) and Buck v. Davis, 580 U.S. 100 (2017): The COA standard. When a habeas petition is dismissed on procedural grounds, the petitioner must show that jurists of reason would find the procedural ruling debatable.
28 U.S.C. § 2244(d)(1)(A): AEDPA’s one-year statute of limitations for § 2254 petitions, running from the date the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review.
28 U.S.C. § 2244(d)(2): Statutory tolling for the time during which a properly filed state postconviction application is pending. The court explains tolling cannot revive an expired statute of limitations; petitioner’s Rule 35(c) filing in 2014 was many years too late to toll a period that expired in 2006.
Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000); Miller v. Marr, 141 F.3d 976 (10th Cir. 1998): Equitable tolling is available only where a petitioner diligently pursued claims and extraordinary circumstances beyond the petitioner’s control prevented timely filing.
Fleming v. Evans, 481 F.3d 1249 (10th Cir. 2007): “Sufficiently egregious misconduct” by habeas counsel may justify equitable tolling; ordinary mistakes or negligence do not.
Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000); Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998): Equitable tolling is reserved for “rare and exceptional circumstances”; simple excusable neglect does not suffice.
United States v. Pinson, 584 F.3d 972 (10th Cir. 2009); Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991): Pro se filings are liberally construed but courts cannot serve as a party’s advocate. The panel cited this to explain it could not reconstruct detailed arguments not raised.

Legal Reasoning

The court proceeds in two methodical steps: waiver and timeliness/tolling.

Waiver under Rule 72 and the firm waiver rule:
- The magistrate judge warned petitioner that she had 14 days to file specific objections and that failure to do so would waive appellate review. Petitioner filed 18 days after service and did not address the dispositive timeliness analysis.
- Although these facts would typically trigger the Tenth Circuit’s firm waiver rule, the panel, consistent with prior unpublished practice, expressly declined to decide whether the firm waiver rule supplies an independent basis to deny a COA. This maintains the circuit’s unsettled posture on that discrete question and avoids erecting an additional, potentially dispositive procedural barrier in the COA analysis.
Timeliness and equitable tolling under AEDPA:
- Applying § 2244(d)(1)(A), the panel concluded the one-year limitations period expired in 2006. The § 2254 petition filed in August 2024 was therefore untimely by almost 18 years.
- Statutory tolling under § 2244(d)(2) did not help petitioner because the Rule 35(c) application was filed in 2014—long after AEDPA’s period had run. A postconviction application filed after the federal deadline has expired cannot revive or restart the limitations clock.
- Equitable tolling requires both diligence and an extraordinary impediment (e.g., egregious attorney misconduct). The panel found neither. Petitioner’s generalized assertions of attorney failings over many years, prison law library issues, and other common obstacles did not constitute “rare and exceptional circumstances,” and the near 18-year delay undermined any claim of diligence.
- Because the equitable tolling showing failed, reasonable jurists could not debate the district court’s procedural ruling. Under Slack and Buck, the COA must be denied without reaching the underlying constitutional claims.

Observations and Nuances

Finality date nuance: The panel identified the date the Colorado Supreme Court denied review (September 12, 2005) as the date the judgment became final. Under Gonzalez v. Thaler, 565 U.S. 134 (2012), finality typically includes the 90 days for seeking certiorari in the U.S. Supreme Court if that avenue is available and not pursued. Even if the additional 90 days were included, the petition here would still be untimely by many years, so the difference is immaterial to the outcome.
COA gatekeeping: The panel hewed to Slack’s instruction to resolve procedural threshold issues without opining on the merits. This preserves judicial resources and avoids advisory rulings where a dispositive procedural bar exists.
Pro se treatment: The court reiterated that while pro se filings are liberally construed, courts will not craft arguments for litigants; specificity and diligence still matter, particularly where AEDPA deadlines are concerned.

Impact and Practical Implications

Though unpublished and non-precedential (except for law of the case, res judicata, and collateral estoppel), Neeley carries persuasive weight and sends clear signals for habeas practice in the Tenth Circuit.

Equitable tolling remains exceptionally rare: Mere attorney error, routine prison limitations, or general allegations of ineffective assistance over time will not suffice. Demonstrating “sufficiently egregious misconduct” requires concrete, extraordinary facts (e.g., abandonment, deception, or conduct resembling professional misconduct well beyond negligence) coupled with sustained diligence by the petitioner.
Protective filing strategies are vital: State postconviction efforts do not restart a long-expired federal clock. Practitioners should consider protective § 2254 filings and seek stays (Rhines v. Weber) where exhaustion is incomplete, rather than waiting for years of state-postconviction activity to conclude.
Rule 72 practice matters: Timely, specific objections to a magistrate judge’s recommendation preserve appellate issues and avoid the risk of waiver. Even though Neeley sidesteps whether firm waiver independently bars a COA, litigants should assume the rule will be enforced.
IFP denials will commonly follow COA denials: Without a debatable issue, the appeal is not taken in good faith for purposes of 28 U.S.C. § 1915, making IFP unlikely.
COA posture in procedural dismissals: Neeley continues the pattern of deciding COA requests by focusing on untimeliness and tolling, not merits—underscoring the critical importance of the AEDPA clock.

Complex Concepts Simplified

Certificate of Appealability (COA): A threshold permission slip required for a habeas appeal. A COA issues only if reasonable jurists could debate the district court’s decision. When the district court dismisses on procedural grounds, the petitioner must show the procedural ruling is debatable among reasonable jurists.
AEDPA’s One-Year Limitations Period: For state prisoners, § 2244(d)(1)(A) generally gives one year from the date the conviction becomes final (after direct review concludes or the time to seek such review expires, often including the 90-day certiorari period) to file a federal habeas petition.
Statutory Tolling (§ 2244(d)(2)): Pauses the one-year period while a properly filed state postconviction application is pending. It does not restart or revive the limitations period once it has expired.
Equitable Tolling: A judge-made doctrine allowing deadline relief in extraordinary circumstances. To qualify, a petitioner must show diligent pursuit of rights and that some extraordinary circumstance beyond the petitioner’s control prevented timely filing. Ordinary mistakes, delay, or lack of legal sophistication are generally insufficient.
Firm Waiver Rule: In the Tenth Circuit, a party must make timely and specific objections to a magistrate judge’s recommendation to preserve issues for appellate review. Exceptions apply where a pro se litigant is not warned about deadlines and consequences, or in the interests of justice. Whether the firm waiver rule itself is an independent ground to deny a COA remains unresolved in the Tenth Circuit.
In Forma Pauperis (IFP) on Appeal: Allows an indigent appellant to proceed without paying fees. If the court concludes the appeal is not taken in good faith—commonly when a COA is denied—IFP is usually denied.

Concluding Takeaways

Neeley fortifies the Tenth Circuit’s consistent message: AEDPA’s one-year limit is firm, and equitable tolling is reserved for truly extraordinary cases where the petitioner has been diligent and confronted with exceptional barriers.
Filing state postconviction motions years after AEDPA’s deadline has run cannot salvage timeliness under § 2244(d)(2). Tolling pauses a running clock; it does not rewind an expired one.
While acknowledging the firm waiver rule, the panel denied the COA under Slack/Buck without deciding whether waiver alone can bar a COA—leaving that doctrinal question open but urging litigants to preserve issues through timely, specific objections.
For practitioners and pro se litigants alike, the case is a practical reminder to track the AEDPA clock from finality, to promptly assert tolling only with robust factual support, and to use protective filings and stay mechanisms to avoid forfeiture.

In sum, Neeley v. Long offers a clear, if unforgiving, illustration of AEDPA’s timeliness regime: absent diligence and truly extraordinary circumstances, an untimely § 2254 petition will not be saved by equitable tolling, and a COA will be denied without reaching the merits.

Note on precedential status: The order is unpublished and “not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel,” but it may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.