Bracamontes-Elizondo v. Bryant , 708 F. App'x 966 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 18, 2018
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
VICTOR DAVID BRACAMONTES-
ELIZONDO,
Petitioner - Appellant,
No. 17-6155
(D.C. No. 5:16-CV-01405-F)
v.
(W.D. Okla.)
JASON BRYANT, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MATHESON, KELLY, and MURPHY, Circuit Judges.
This matter is before the court on Victor David Bracamontes-Elizondo’s
pro se request for a certificate of appealability (“COA”). Bracamontes-Elizondo
seeks a COA so he can appeal the district court’s dismissal, on timeliness
grounds, of his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A)
(providing no appeal may be taken from “a final order in a habeas corpus
proceeding in which the detention complained of arises out of process issued by a
State court” without first obtaining a COA); id. § 2244(d)(1)(A) (setting out a
one-year statute of limitations on § 2254 petitions running from the date on which
the conviction became final). Because Bracamontes-Elizondo has not “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this
court denies his request for a COA and dismisses this appeal.
In a detailed Report and Recommendation, a magistrate judge concluded
Bracamontes-Elizondo’s Oklahoma state conviction for Aggravated Trafficking in
Illegal Drugs became final on August 2, 2013. In so doing, the magistrate judge
thoroughly explained why Bracamontes-Elizondo was in error in asserting his
state court conviction became final at some later date under the provisions of 28
U.S.C. § 2244(d)(1)(A)-(C). The magistrate judge further recommended that the
district court deny Bracamontes-Elizondo’s request for statutory tolling, id. §
2244(d)(2), and equitable tolling, Lawrence v. Florida, 549 U.S. 327 (2007).
Upon de novo review, the district court adopted the Report and Recommendation
and dismissed Bracamontes-Elizondo’s § 2254 habeas petition with prejudice.
The granting of a COA is a jurisdictional prerequisite to Bracamontes-
Elizondo’s appeal from the dismissal of his § 2254 petition. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA, he must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make the requisite showing, he must demonstrate “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.” Miller-El, 537 U.S. at
336 (quotations omitted). When a district court dismisses a § 2254 motion on
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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. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating
whether Bracamontes-Elizondo has satisfied his burden, this court undertakes “a
preliminary, though not definitive, consideration of the [legal] framework”
applicable to each of his claims. Miller-El, 537 U.S. at 338. Although
Bracamontes-Elizondo need not demonstrate his appeal will succeed to be entitled
to a COA, he must “prove something more than the absence of frivolity or the
existence of mere good faith.” Id. (quotations omitted). As a further overlay on
this standard, we review for abuse of discretion the district court’s decision that
Bracamontes-Elizondo is not entitled to have the limitations period set out in
§ 2244(d)(1) equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141 (10th
Cir. 2003).
Having undertaken a review of Bracamontes-Elizondo’s appellate filings,
the magistrate judge’s Report and Recommendation, the district court’s Order,
and the entire record before this court pursuant to the framework set out by the
Supreme Court in Miller-El and Slack, we conclude Bracamontes-Elizondo is not
entitled to a COA. The district court’s resolution of Bracamontes-Elizondo’s
§ 2254 motion is not deserving of further proceedings or subject to a different
resolution on appeal. In so concluding, this court has nothing to add to the cogent
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analyses set out in the magistrate judge’s Report and Recommendation and the
district court’s Order of Dismissal. Accordingly, this court DENIES
Bracamontes-Elizondo’s request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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