F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 20, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-2092
v. (D.C. No. CIV-04-1116)
(New Mexico)
ALFONSO TAFOYA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Alfonso Tafoya, a federal prisoner proceeding pro se, applies for a
certificate of appealability (COA) to challenge the district court’s dismissal of his
petition for habeas relief pursuant to 28 U.S.C. § 2255. The district court
determined Mr. Tafoya’s petition was time barred by the one-year statute of
limitations in the Antiterrorism and Effective Death Penalty Act of 1996
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
(AEDPA), see 28 U.S.C. § 2255. The court also denied his request for a COA.
Exercising jurisdiction under 28 U.S.C. § 2253(a), and construing Mr. Tafoya’s
pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we are
not persuaded “jurists of reason would find . . . debatable” the district court’s
rejection of Mr. Tafoya’s petition. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We therefore deny Mr. Tafoya’s request for a COA.
Mr. Tafoya pled guilty to a federal drug charge and was sentenced to sixty
months of imprisonment. Judgment was entered against him on March 4, 2003,
and he did not file a direct appeal challenging any aspect of his conviction or
sentence. Nearly nineteen months later on September 30, 2004, Mr. Tafoya filed
this habeas action challenging his sentence and claiming his Sixth Amendment
rights were violated due to ineffective assistance of counsel. In essence, Mr.
Tafoya claimed he received a much longer sentence than his counsel had led him
to expect. The district court ordered him to show cause why his petition should
not be dismissed as barred by the one year statute of limitations in ADEPA. In
response, Mr. Tafoya contended the limitations period should not begin to run
until November 23, 2003, when he allegedly learned in a letter from his attorney
“that what he had been told prior to his plea and sentencing hearing was different
from what actually took place during the sentencing hearing.” Rec., doc. 5 at 2.
He also asserted that equitable tolling applied to his case because he had
-2-
diligently pursued his claims by writing three letters to his attorney inquiring as to
why he had received a longer sentence than expected. The district court rejected
these arguments.
First, the court noted Mr. Tafoya could not rely on the statutory tolling
provision in § 2255(4) which directs that the limitations period “shall run from . .
. the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(4).
The court reasoned that the November 23, 2003 letter Mr. Tafoya received from
his attorney did not disclose to him any facts he did not already know at the time
of sentencing, i.e., that he did not receive the sentence he expected.
Second, the district court rejected Mr. Tafoya’s argument that he was
entitled to equitable tolling. The court pointed out that under controlling Tenth
Circuit case law, “[e]quitable tolling is only available when an inmate diligently
pursues his claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” Rec., doc. 6 at 2 (internal
quotations and citations omitted). See also Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000). The court reasoned that Mr. Tafoya’s three letters to his
attorney did not amount to a diligent pursuit of his claims. Nor was Mr. Tafoya
able to point to anything that limited his ability to file his action within the
required tolling period. The court therefore denied Mr. Tafoya’s equitable tolling
-3-
arguments and dismissed his petition.
The issuance of a COA is jurisdictional, Miller-El v. Cockrell, 537 U.S.
322, 336 (2003), and can issue only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 327. When a district court has
dismissed a habeas petition on procedural grounds, we may only issue a COA
when “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484. Based on our review of
the record on appeal, the district court’s order, and Mr. Tafoya’s submissions to
this court, we do not think jurists of reason would disagree with the district court
that Mr. Tafoya neither satisfied the requirements for statutory tolling under §
2255(4), nor presented “rare and exceptional circumstances” warranting equitable
tolling of the AEDPA limitations. Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000).
Accordingly, we DENY Mr. Tafoya’s request for a COA and DISMISS the
appeal.
ENTERED FOR THE COURT
-4-
Stephanie K. Seymour
Circuit Judge
-5-