United States v. Garcia-Gutierrez , 440 F. App'x 603 ( 2011 )


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  •                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                          September 9, 2011
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 11-3128
    (D.C. Nos. 6:10-CV-01389-WEB and
    EDUARDO GARCIA-GUTIERREZ,                              6:08-CR-10080-WEB-1
    (D. Kan.)
    Defendant - Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.
    Eduardo Garcia-Gutierrez, a federal prisoner appearing pro se, seeks a certificate
    of appealability (“COA”) that would allow him to appeal from the district court’s order
    denying his habeas corpus petition under 
    28 U.S.C. § 2255
    . See 
    28 U.S.C. § 2253
    (c)(1)(A) (requiring COA to appeal order denying a § 2255 petition). We deny
    Mr. Garcia-Gutierrez’s request and dismiss this appeal because his § 2255 petition was
    untimely.
    * This order is not binding precedent, except under the doctrines of law of the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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    In April 2008, Mr. Garcia-Gutierrez was indicted on one count of illegal reentry
    subsequent to a conviction for an aggravated felony in violation of 
    8 U.S.C. §§ 1326
    (a)
    and (b)(2). On June 11, 2008, Mr. Garcia-Gutierrez pled guilty to the charge pursuant to
    a plea agreement. The written plea agreement contained a provision in which Mr.
    Garcia-Gutierrez agreed to waive his rights to directly or collaterally challenge his
    prosecution, conviction, or sentence. On August 25, 2008, the district court entered
    judgment, sentencing Mr. Garcia-Gutierrez to 57 months of imprisonment. Mr. Garcia-
    Gutierrez did not file a direct appeal.
    On November 15, 2010, Mr. Garcia-Gutierrez filed a petition attacking his
    sentence under 
    28 U.S.C. § 2255
    . In his petition, he argued, among other things, that he
    was denied effective assistance of counsel because his attorney did not file a direct appeal
    on his behalf. The government requested Mr. Garcia-Gutierrez’s petition be dismissed,
    arguing that it was (1) barred by the waiver provision in the written plea agreement, and
    (2) untimely because it was filed more than one year after Mr. Garcia-Gutierrez’s
    conviction became final.
    The district court dismissed Mr. Garcia-Gutierrez’s § 2255 petition, concluding
    that it was time-barred based on the one-year limitations period set forth in the
    Antiterrorism and Effective Death Penalty Act (the “AEDPA”). In support of this
    conclusion, the district court noted that “the judgment in [Mr. Garcia-Gutierrez’s] case
    . . . became final on September 11, 2008 . . . [and he] did not file [his § 2255 petition]
    until November 15, 2010, well past the one year statute of limitations.” United States v.
    -2-
    Gutierrez, No. 08-1008-WEB, 
    2011 U.S. Dist. LEXIS 41471
    , at *4 (D. Kan. Apr. 15,
    2011). In its order of dismissal, the district court also concluded that Mr. Garcia-
    Gutierrez had failed to demonstrate any entitlement to equitable tolling of the one-year
    limitations period.1 See 
    id. at *3-4
    .
    Mr. Garcia-Gutierrez now seeks a COA from this court.2 The granting of a COA
    is a jurisdictional prerequisite to Mr. Garcia-Gutierrez’s appeal from the district court’s
    denial of his § 2255 petition. See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003); United
    States v. Chiquito, 
    526 F.3d 1310
    , 1312 (10th Cir. 2008). Where, as here, the district
    court dismisses a petition on procedural grounds, we will grant a COA only if the
    petitioner can “demonstrate both 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.’” Clark v. Oklahoma, 
    468 F.3d 711
    , 713 (10th Cir. 2006) (quoting Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000)). As a further overlay on this standard, we review
    for abuse of discretion a district court’s decision that a defendant is not entitled to have
    the one-year limitations period for filing a § 2255 petition equitably tolled. See Burger v.
    1
    Equitable tolling is available “only in rare and exceptional circumstances.”
    Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000) (quotation omitted).
    2
    Because Mr. Garcia-Gutierrez is proceeding pro se, we construe his pleadings
    liberally. See Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007); see also United States v.
    Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
    arguments liberally; this rule of liberal construction stops, however, at the point at which
    we begin to serve as his advocate.”).
    -3-
    Scott, 
    317 F.3d 1133
    , 1138 (10th Cir. 2003).
    In his brief to this court and application for COA, Mr. Garcia-Gutierrez has not
    challenged or addressed the district court’s procedural ruling. Additionally, Mr. Garcia-
    Gutierrez has not presented any argument that the district court miscalculated the one-
    year period for filing his § 2255 petition or that the court erroneously resolved the
    equitable tolling question. Instead, he has simply reasserted the substantive arguments he
    made in his original § 2255 petition.
    Mr. Garcia-Gutierrez has failed to show “that jurists of reason would find it
    debatable whether the district court was correct in its procedural ruling.” Slack, 
    529 U.S. at 484
    . And, after reviewing Mr. Garcia-Gutierrez’s appellate filings, the district court’s
    order, and the entire record before this court, we conclude that the district court did not
    abuse its discretion in determining that Mr. Garcia-Gutierrez failed to demonstrate the
    type of extraordinary circumstance that justifies equitably tolling the one-year limitations
    period set forth in § 2255(f) of the AEDPA. We therefore DENY Mr. Garcia-Gutierrez’s
    request for a COA and DISMISS this matter.
    ENTERED FOR THE COURT
    Scott M. Matheson, Jr.
    Circuit Judge
    -4-
    

Document Info

Docket Number: 11-3128

Citation Numbers: 440 F. App'x 603

Judges: Briscoe, Murphy, Matheson

Filed Date: 9/9/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024