United States v. Cortez , 434 F. App'x 747 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-8031
v. (D. Wyoming)
ROBERTO CORTEZ, SR., (D.C. Nos. 2:09-CV-00140-CAB and
2:01-CR-00016-CAB-1)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Petitioner and appellant Roberto Cortez, Sr., proceeding pro se, seeks a
certificate of appealability (“COA”) to enable him to appeal the dismissal of his
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. Concluding
that he has not satisfied the requirements for the issuance of a COA, we deny his
request for a COA and dismiss this matter.
On January 23, 2001, an indictment was issued charging Mr. Cortez and his
co-defendants with various offenses arising out of their marijuana and
methamphetamine activities. While his co-defendants were quickly captured,
indicted and sentenced, Mr. Cortez was not arrested until 2005. He elected to go
to trial, rather than pleading guilty like his colleagues. After a four-day trial,
Mr. Cortez was found guilty and ultimately sentenced to 195 months’
imprisonment, followed by five years of supervised release. Our court affirmed
his conviction, and his petition for certiorari to the United States Supreme Court
was denied. United States v. Cortez, 252 Fed. Appx. 887 (10th Cir. 2007), cert.
denied, 552 U.S. 1274 (2008).
Mr. Cortez filed the instant petition for a § 2255 petition on June 22, 2009.
As the district court noted, § 2255 provides a one-year statute of limitations. The
one-year limitation period begins to run from, inter alia, the date when the
Supreme Court “denies certiorari.” United States v. Prows, 448 F.3d 1223, 1227
(10th Cir. 2006). Accordingly, Mr. Cortez’s conviction became final for purposes
of the one-year limitation period on March 17, 2008, the day the Supreme Court
denied certiorari. His § 2255 motion, filed on June 22, 2009, was therefore some
three months late.
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Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Furthermore,
“[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 district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Mr. Cortez claims it is debatable whether his petition was
timely filed, or whether the time-limitation should be tolled on some basis,
equitable or otherwise. We disagree. Mr. Cortez’s petition was not filed in time.
We accordingly DENY him a COA and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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