Gomez v. Leyba, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

GUILLERMO A. GOMEZ,

Petitioner - Appellant,

No. 07-1118

v.

(D. Colorado)

RON LEYBA, Warden; JOHN W.

SUTHERS, Colorado Attorney

General,

Respondents - Appellees.

(D.C. No. 06-cv-794-ZLW)

ORDER DENYING CERTIFICATE OF APPEALABILITY
href="#N_*_" name="txt*">(*)

Before LUCERO,
name="9">HARTZ, and GORSUCH,

Circuit Judges.

Guillermo Gomez, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the denial by the United States District Court for

the District of Colorado of his application for relief under 28 U.S.C. 2254. See

28 U.S.C. 2253(c)(1)(b) (requiring COA to appeal denial of § 2254

application). The district court determined that Mr. Gomez had filed his

application after the statutory one-year limitation period had expired, denied his

application, and denied a COA. He contends that the district court erred in not

considering the reasons he offered for having filed his application out of time.

We deny a COA and dismiss the appeal.

Mr. Gomez was convicted of sexual assault on a child in May 2000. On

appeal to the Colorado Court of Appeals, his conviction was affirmed on May 8,

2003. His petition for a writ of certiorari from the Colorado Supreme Court was

denied on May 3, 2004. On September 15, 2004, Mr. Gomez filed a request under

Colo. R. Crim. P. 35(b) for postconviction relief, which was denied on

December 16, 2004. More than a year later, on April 14, 2006, he filed a motion

for postconviction relief under Colo. R. Crim. P. 35(c), which was pending when

he filed his § 2254 application on May 10, 2006.

The district court denied the application because it had not been filed

within the one-year limitation period under the Antiterrorism and Effective Death

Penalty Act, 28 U.S.C. 2244(d)(1)(A). The court computed (1) that the one-year period

began on August 2, 2004, when Mr. Gomez's time for seeking review

in the United States Supreme Court expired, see Rhine v. Boone, 182

F.3d 1153,

1155 (10th Cir. 1999); Sup. Ct. R. 13(1) (petition for writ of certiorari must be

filed within 90 days of entry of judgment); (2) that this period was tolled under

§ 2244(d)(2) from September 15, 2004, to December 16, 2004, while his 35(b)

motion for postconviction relief was pending; and (3) that this period had expired

before he filed his 35(c) motion. The court then rejected Mr. Gomez's contention

that his reasons for the delay constituted extraordinary circumstances that would

justify equitable tolling.

"When 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 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 v. McDaniel, 529 U.S. 473, 484

(2000). Mr. Gomez does not, and could not, challenge the district court's

determination that he failed to file his § 2254 application within the one-year

limitation period. He does argue, however, that he has provided sufficient

grounds for requiring equitable tolling. We disagree.

The one-year limitation period in § 2244(d) may be equitably tolled when

the inmate demonstrates that he diligently pursued his claims and that his failure

to file within the limitation period was caused by extraordinary circumstances.

See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). In his

pleadings in

this court Mr. Gomez contends that his delay should be excused because (1) he

did not receive appointed counsel to help him file a habeas application, (2) the

attorney who assisted him with his 35(b) motion did not advise him on how to file

a habeas application, and (3) he is unfamiliar with the English language. But

these are not extraordinary circumstances warranting equitable tolling. Because

"[t]here is no constitutional right to an attorney in state post-conviction

proceedings," Coleman v. Thompson, 501 U.S. 722 , 752 (1991), denial of

appointed counsel and ineffective assistance of counsel are not extraordinary

circumstances. See Fleming v. Evans, 481 F.3d 1249 at *4 (10th Cir. 2007).

Neither is unfamiliarity with the English language. See Turner v. Johnson, 177

F.3d 390, 391­92 (5th Cir.1999) (unfamiliarity with the law due to illiteracy does

not toll limitation period); Jamison v. Jones, 197 Fed. App'x 743, 746 (10th Cir.

2006) (following Turner); Gonzales v. Beck, 118 Fed. App'x 444, 447

(10th Cir.

2004) (same); Malone v. Oklahoma, 100 Fed. App'x 795, 798 (10th Cir. 2004)

(same); Smith v. Suthers, 18 Fed. App'x 727, 729 (10th Cir. 2001) (same);

United

States v. Cordova, 202 F.3d 283 (10th Cir. 1999) (unpublished table decision)

(same).

Mr. Gomez has not demonstrated that he pursued his claims with diligence

or that his delay was caused by extraordinary circumstances. No reasonable jurist

could debate the district court's conclusion that Mr. Gomez was not entitled to

equitable tolling. We DENY a COA, DENY his request to proceed in forma

pauperis, and DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining the brief and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment 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.

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