United States v. Espinoza , 536 F. App'x 833 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 1, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 13-8030
(D. Wyoming)
v.
(D.C. Nos. 1:12-CV-00267-ABJ and
1:08-CR-00170-WFD-1)
JULIAN ESPINOZA,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Julian Espinoza’s pro se request for a
certificate of appealability (“COA”). Espinoza seeks a COA so he can appeal the
district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2255 motion.
See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a
final order denying a § 2255 motion unless the movant first obtains a COA); id.
§ 2255(f)(1) (setting out a one-year statute of limitations on § 2255 motions
running from the date on which the conviction became final). Because Espinoza
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.
Following a jury trial in federal district court, Espinoza was convicted of
receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1).
This court affirmed Espinoza’s conviction on direct appeal. United States v.
Espinoza, 403 F. App’x 3158 (10th Cir. 2010). Espinoza’s conviction became
final when the Supreme Court denied certiorari on March 21, 2011. See Espinoza
v. United States, 131 S. Ct. 1710 (2011); see also United States v. Gabaldon, 522
F.3d 1121, 1123 (10th Cir. 2008) (noting movant’s convictions became final upon
the Supreme Court’s denial of certiorari). Espinoza filed the instant § 2255
motion on November 2, 2012, more than seven months beyond the one-year
limitations period set out in § 2255(f)(1).
Before the district court, Espinoza recognized his § 2255 motion was
untimely, but asserted as follows: (1) the application of § 2255(f)(1)’s limitations
period to him amounted to a violation of the Suspension Clause; and (2) he was
entitled to equitable tolling because of diminished mental capacity. In a
comprehensive order, the district court rejected these contentions and dismissed
Espinoza’s motion. The district court rejected Espinoza’s Suspension Clause
argument because Espinoza failed to articulate how the limitations period set out
in § 2255(f)(1) rendered the habeas remedy inadequate or ineffective. Miller v.
Marr, 141 F.3d 976, 977 (10th Cir. 1998). The district court rejected Espinoza’s
request for equitable tolling because Espinoza failed to demonstrate he was
diligent in pursuing his post-conviction remedies. Furthermore, even assuming
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Espinoza was diligent, he failed to demonstrate any mental illness he might have
significantly impaired his ability to file a timely § 2255 motion. In that regard,
the district court noted Espinoza’s correspondence with his attorney during the
relevant time frame demonstrated his ability to pursue his post-conviction
remedies.
The granting of a COA is a jurisdictional prerequisite to Espinoza’s appeal
from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Espinoza 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.” Id. (quotations omitted). When a district
court dismisses a § 2255 motion on procedural grounds, a movant 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. 474, 484-85
(2000). In evaluating whether Espinoza 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 Espinoza need not demonstrate his appeal will succeed to be entitled to
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a COA, he must “prove something more than the absence of frivolity or the
existence of mere good faith.” Id. As a further overlay on this standard, we
review for abuse of discretion the district court’s decision that Espinoza is not
entitled to have the limitations period in § 2255(f) equitably tolled. See Burger v.
Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).
Having undertaken a review of Espinoza’s appellate filings, 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, we conclude Espinoza is not entitled to
a COA. The district court’s resolution of Espinoza’s § 2255 motion is not
reasonably subject to debate and the issues he seeks to raise on appeal are not
adequate to deserve further proceedings. In particular, the district court did not
abuse its discretion in determining Espinoza failed to demonstrate the type of
extraordinary circumstances that would justify equitably tolling the limitations
period set out in § 2255. Likewise, one cannot reasonably debate the correctness
of the district court’s conclusion that the application of § 2255(f)(1) to Espinoza’s
motion does not violate the Suspension Clause. Accordingly, this court DENIES
Espinoza’s request for a COA and DISMISSES this appeal. Espinoza’s request
to proceed on appeal in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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