Anaya v. FNU LNU ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ARTURO ANAYA,
Petitioner - Appellant,
v. No. 20-2162
(D.C. No. 1:20-CV-00328-WJ-GJF)
FNU LNU, Warden; ATTORNEY (D. N.M.)
GENERAL OF THE STATE OF NEW
MEXICO,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
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Petitioner-Appellant Arturo Anaya, a state inmate appearing pro se, seeks a
certificate of appealability (COA) to appeal the dismissal of his amended habeas
petition, 28 U.S.C. § 2254, as time-barred and not subject to equitable tolling. Anaya
v. FNU LNU, No. 20-CV-328 WJ/GJF, 2020 WL 5748254 (D.N.M. Sept. 25, 2020).
Mr. Anaya also seeks leave to proceed in forma pauperis (IFP). In 2013, a jury
convicted Anaya of two counts of first-degree murder, aggravated battery, and
intimidation of a witness. He was sentenced to 66 years imprisonment and his
*
This order is not binding precedent, except under the doctrines of law of the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.
conviction was affirmed on direct appeal. State v. Anaya, No. 34,279, 2015 WL
2092804 (N.M. May 4, 2015).
To obtain a COA, Mr. Anaya must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court dismisses a
§ 2254 petition on procedural grounds, the petitioner must demonstrate “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.” See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Here, Mr. Anaya delayed filing his habeas
petition nearly three years after his state conviction became final and is not saved by
statutory tolling. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011).
The limitation period for Mr. Anaya to file a federal habeas petition expired on
October 20, 2016, Anaya, 2020 WL 5748254, at *2, and any state postconviction
motions filed after that time did not affect the expired limitations period. See Clark
v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Mr. Anaya continues to challenge
his convictions in state court and his fourth state habeas petition is pending. State v.
Anaya, D-101-CR-2012-00119. Mr. Anaya does not provide a reason for failing to
timely file a federal habeas petition and does not address the district court’s
reasoning regarding the time-bar.
Regarding his federal petition, Mr. Anaya has failed to “show specific facts to
support his claim of extraordinary circumstances and due diligence” sufficient to
trigger equitable tolling of the limitations period. Yang v. Archuleta, 525 F.3d 925,
2
928 (10th Cir. 2008) (internal citations omitted). The district court thoroughly
explained why equitable tolling would not apply. No reasonable jurist would find the
district court’s procedural ruling debatable, and it is therefore unnecessary to
consider whether Mr. Anaya made a substantial showing of the denial of a
constitutional right.
We DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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