Gomez v. Leyba , 242 F. App'x 493 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GU ILLERM O A . GO M EZ,
Petitioner - A ppellant, No. 07-1118
v. (D. Colorado)
RON LEYBA, W arden; JOHN W . (D.C. No. 06-cv-794-ZLW )
SU THERS, Colorado Attorney
General,
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Guillermo Gomez, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the denial by the United States District Court for
the District of Colorado of his application for relief under 28 U.S.C. § 2254. See
28 U.S.C. § 2253(c)(1)(b) (requiring COA to appeal denial of § 2254 application).
The district court determined that M r. Gomez had filed his application after the
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
statutory one-year limitation period had expired, denied his application, and
denied a COA. He contends that the district court erred in not considering the
reasons he offered for having filed his application out of time. W e deny a COA
and dismiss the appeal.
M r. G omez w as convicted of sexual assault on a child in M ay 2000. On
appeal to the Colorado Court of Appeals, his conviction was affirmed on M ay 8,
2003. His petition for a writ of certiorari from the Colorado Supreme Court was
denied on M ay 3, 2004. On September 15, 2004, M r. Gomez filed a request under
Colo. R. Crim. P. 35(b) for postconviction relief, which was denied on
December 16, 2004. M ore than a year later, on April 14, 2006, he filed a motion
for postconviction relief under Colo. R. Crim. P. 35(c), which was pending when
he filed his § 2254 application on M ay 10, 2006.
The district court denied the application because it had not been filed
within the one-year limitation period under the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2244(d)(1)(A). The court computed (1) that the one-
year period began on August 2, 2004, when M r. Gomez’s time for seeking review
in the United States Supreme Court expired, see Rhine v. Boone, 182 F.3d 1153,
1155 (10th Cir. 1999); Sup. Ct. R. 13(1) (petition for writ of certiorari must be
filed within 90 days of entry of judgment); (2) that this period was tolled under
§ 2244(d)(2) from September 15, 2004, to December 16, 2004, while his 35(b)
motion for postconviction relief was pending; and (3) that this period had expired
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before he filed his 35(c) motion. The court then rejected M r. Gomez’s contention
that his reasons for the delay constituted extraordinary circumstances that would
justify equitable tolling.
“W hen the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484
(2000). M r. Gomez does not, and could not, challenge the district court’s
determination that he failed to file his § 2254 application within the one-year
limitation period. He does argue, however, that he has provided sufficient
grounds for requiring equitable tolling. W e disagree.
The one-year limitation period in § 2244(d) may be equitably tolled when
the inmate demonstrates that he diligently pursued his claims and that his failure
to file within the limitation period was caused by extraordinary circumstances.
See M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). In his pleadings in
this court M r. Gomez contends that his delay should be excused because (1) he
did not receive appointed counsel to help him file a habeas application, (2) the
attorney who assisted him with his 35(b) motion did not advise him on how to file
a habeas application, and (3) he is unfamiliar with the English language. But
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these are not extraordinary circumstances w arranting equitable tolling. Because
“[t]here is no constitutional right to an attorney in state post-conviction
proceedings,” Coleman v. Thom pson, 501 U.S. 722, 752 (1991), denial of
appointed counsel and ineffective assistance of counsel are not extraordinary
circumstances. See Fleming v. Evans, 481 F.3d 1249 at *4 (10th Cir. 2007).
Neither is unfamiliarity with the English language. See Turner v. Johnson, 177
F.3d 390, 391–92 (5th Cir.1999) (unfamiliarity with the law due to illiteracy does
not toll limitation period); Jamison v. Jones, 197 Fed. App’x 743, 746 (10th Cir.
2006) (following Turner); Gonzales v. Beck, 118 Fed. App’x 444, 447 (10th Cir.
2004) (same); Malone v. O klahoma, 100 Fed. App’x 795, 798 (10th Cir. 2004)
(same); Sm ith v. Suthers, 18 Fed. App’x 727, 729 (10th Cir. 2001) (same); United
States v. Cordova, 202 F.3d 283 (10th Cir. 1999) (unpublished table decision)
(same).
M r. Gomez has not demonstrated that he pursued his claims with diligence
or that his delay was caused by extraordinary circumstances. No reasonable jurist
could debate the district court’s conclusion that M r. Gomez was not entitled to
equitable tolling. W e DENY a COA, DENY his request to proceed in forma
pauperis, and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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