FILED
United States Court of Appeals
Tenth Circuit
November 30, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOSE GARZA,
Petitioner-Appellant, No. 11-3283
v. (D. of Kan.)
STATE OF KANSAS, (D.C. No. 5:11-CV-03127-SAC)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Jose Garza, a Kansas state prisoner, seeks a certificate of appealability
(COA) to enable him to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 petition on the alternative grounds of exhaustion and timeliness. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we construe Garza’s filing
liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106,
1110 & n.3 (10th Cir. 1991). Nonetheless, no reasonable jurist could conclude
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the district court’s dismissal was incorrect. See Slack v. McDaniel, 529 U.S. 473,
484 (2000). Accordingly, we DENY the application for a COA and DISMISS the
appeal.
I. Background
Garza pleaded guilty to robbery and attempted aggravated robbery,
receiving a sentence of 32 months in prison. In 2001, he pleaded guilty to six
additional counts of rape and one count each of robbery, aggravated robbery, and
battery, receiving a sentence of 420 months in prison. Both sentences were to run
concurrently. Garza did not directly appeal either sentence.
In 2007, Garza filed a state habeas motion, pursuant to KAN . STAT . ANN .
§ 60-1507, alleging that he had intended to plead guilty by reason of insanity, but
his lawyer would not allow him to do so. The state district court denied his
motion, concluding there was no substantial question of law or triable issue of
fact and that the files and records conclusively showed he was not entitled to
relief. Counsel was appointed for the purpose of allowing an out-of-time appeal
to the Kansas Court of Appeals, which subsequently affirmed the state district
court’s ruling.
Garza filed a federal habeas petition pursuant to 28 U.S.C. § 2254, citing
due process violations and cruel and unusual punishment as grounds for relief.
The district court found Garza had not exhausted his state court remedies prior to
filing his petition, and that the claims were statutorily time-barred. The district
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court granted Garza 30 days to show cause why his petition should not be
dismissed, providing him an opportunity to show why equitable tolling should
apply to his claims. Garza’s subsequent filings failed to convince the district
court that he should qualify for equitable tolling, so his petition was dismissed on
the alternative grounds of exhaustion and timeliness.
II. Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a
petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of
a COA. 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the applicant must
demonstrate a “substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). When the district court denies a habeas petition on procedural
grounds, a COA should issue only when the prisoner shows 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.” Slack, 529 U.S. at 484.
Additionally, 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
§ 2254 petition equitably tolled. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.
2003). Garza does not satisfy this standard.
The statute of limitations for filing a federal habeas petition is set forth in
28 U.S.C. § 2244(d)(1), and provides that:
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A 1–year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period
shall run from . . . (A) the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.
As the district court properly found, Garza’s convictions “became final” in 2000
and 2001 upon the expiration of his time to file a direct appeal, meaning that his
statute of limitations expired no later than December 31, 2002. Additionally, the
state habeas motion did not toll the limitation period, see 28 U.S.C. § 2244(d)(2),
so his motion is untimely.
Since Garza’s habeas petition was untimely, we must consider whether he
is entitled to equitable tolling of the AEDPA limitation period. “Generally, a
litigant seeking equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
As a result, equitable tolling is appropriate only in “rare and exceptional
circumstances,” see Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); a
“garden variety claim of excusable neglect” is not enough. Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990). In his petition below, Garza makes
passing reference to his medical history and appears to imply that this history was
part of the reason for his inability to pursue his claims. As the district court
found, “[h]e has failed to even describe any such evidence in sufficient detail. He
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does not name specific medications that he was taking and present evidence that
either those medications or his alleged mental condition would have prevented
him from timely asserting his claims.” R., Vol. I at 92.
We agree with the district court’s analysis. Nothing in Garza’s filings to
this court provides any more specificity regarding his equitable tolling argument
and instead loosely focuses on the merits of his underlying claim. Even viewing
the arguments in the light most favorable to Garza, there is no excuse for his
multiple-year delay in seeking federal relief. “[T]here comes a point at which the
delay of a plaintiff in asserting a claim is sufficiently likely either to impair the
accuracy of the factfinding process or to upset settled expectations that a
substantive claim will be barred without respect to whether it is meritorious.” Bd.
of Regents v. Tomanio, 446 U.S. 478, 487 (1980); see also Marsh v. Soares, 223
F.3d 1217, 1220 (10th Cir. 2000) (“ignorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt filing”) (internal quotation
omitted).
Accordingly, this case does not present one of those “rare and exceptional
circumstances” in which the untimely filing of a federal habeas petition should be
excused.
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III. Conclusion
Garza’s application for a COA is denied and the appeal is dismissed.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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