                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2009
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 ABEL SAENZ-JURADO,

              Petitioner-Appellant,

 v.

 PEOPLE OF THE STATE OF                                 No. 08-1428
 COLORADO; DOUGLAS N. DARR,                   (D.C. No. 1:08-CV-01354-ZLW)
 Adams County Sheriff Department;                        (D. Colo.)
 CHARLES SCOTT CRABTREE,
 District Judge; and JOHN W.
 SUTHERS, Attorney General of the
 State of Colorado,

              Respondents-Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Abel Saenz-Jurado requests a certificate of appealability (“COA”)

following the district court’s denial of his 28 U.S.C. § 2254 application for a writ

of habeas corpus. The district court denied the application because it was time
barred under § 2244(d)(1). For substantially the same reasons as the district

court, we deny Saenz-Jurado’s request for a COA and dismiss the appeal. 1

                                          I

      On August 16, 1994, Saenz-Jurado pleaded guilty in Colorado state court to

one count of unlawful distribution of a schedule II controlled substance. On

December 6, 1994, he was sentenced to ninety days’ confinement and four years’

probation. Saenz-Jurado did not appeal.

      On May 29, 1997, Saenz-Jurado’s probation was revoked, and he was

sentenced to four years in a community corrections program. On September 15,

1999, the community corrections program requested a warrant, claiming that

Saenz-Jurado had failed to comply with program requirements. Saenz-Jurado

alleges that he was then arrested by federal authorities on September 16, 1999,

and subsequently charged with possession of 500 or more grams of cocaine.

After pleading guilty to the federal charge, he was sentenced to 159 months’

imprisonment and transferred to a federal prison in Texas to serve his federal

sentence. On October 24, 2000, Colorado state officials filed a detainer against

Saenz-Jurado seeking his return to Colorado following his release from federal

custody.

      1
         On February 20, 2009, this court issued a show cause order directing
Saenz-Jurado to demonstrate why his notice of appeal from the judgment of the
district court was timely. Having reviewed his response, we conclude that, under
the prison mail box rule, see Fed. R. App. P. 4(c), the notice of appeal was timely
filed, and we proceed to consider Saenz-Jurado’s request for a COA.

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      On November 1, 2002, Saenz-Jurado commenced a state collateral

proceeding challenging his Colorado conviction for unlawful possession of a

schedule II controlled substance. On August 23, 2005, the petition was denied as

untimely by the Colorado district court. The intermediate appellate court

affirmed on March 22, 2007, and on November 5, 2007, the Colorado Supreme

Court denied his petition for a writ of certiorari.

      Thereafter, on June 10, 2008, Saenz-Jurado filed the instant application for

writ of habeas corpus under § 2254 in the United States District Court for the

District of Colorado. His § 2254 application was denied based on the one-year

limitations period in § 2244(d)(1). Saenz-Jurado then requested a certificate of

appealability from the district court, moved for appointment of counsel, and

applied for leave to proceed in forma pauperis (“IFP”) on appeal. The district

court denied all three requests on November 6, 2008. He now seeks a COA from

this court and once again requests appointment of counsel and leave to proceed

IFP on appeal.

                                           II

      Because the district court denied his habeas application as well as his

request for a COA, Saenz-Jurado may not appeal the district court’s decision

absent a grant of a COA by this court. § 2253(c)(1)(A). To obtain a COA,

Saenz-Jurado must make a “substantial showing of the denial of a constitutional

right.” § 2253(c)(2). When the district court denies a habeas application on

                                          -3-
procedural grounds without reaching the underlying constitutional claims, as it

did here, a petitioner is not entitled to a COA unless he can show 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). An appellate court has discretion to resolve

either the procedural or the substantive issue first. Id. at 485.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a

one-year statute of limitations on § 2254 habeas claims. § 2244(d)(1). In the

usual case, the period begins to run from “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking

such review.” § 2244(d)(1)(A). The state court entered judgment against Saenz-

Jurado on December 6, 1994. He did not appeal. Thus, Saenz-Jurado’s

conviction became final and AEDPA’s one-year limitations period began to run

on January 20, 1995, forty-five days after judgment was entered against him. See

Colo. App. R. 4(b) (requiring that a notice of appeal from a state criminal

conviction be filed within forty-five days of the entry of judgment). As a result,

Saenz-Jurado was required to file his federal habeas application by January 20,

1996. See § 2244(d)(1). Because he did not file the present application until

June 10, 2008, given the absence of the benefit of more than twelve years of

tolling, it is time barred under AEDPA.

                                          -4-
      Construing his request for a COA liberally, as we must, see Haines v.

Kerner, 404 U.S. 519, 520-21 (1972), Saenz-Jurado urges that we consider the

limitations period equitably tolled on at least five bases: (1) he did not know how

to read or write in either English or Spanish, (2) he lacked access to legal

materials, (3) he suffered from mental illness, (4) he could not appeal his state

conviction because his attorney had a conflict of interest, and (5) he is actually

innocent. He also wishes to appeal the district court’s refusal to appoint counsel.

      Equitable tolling may be proper in rare and exceptional circumstances.

Coppage v. McKune, 534 F.3d 1279, 1280 (10th Cir. 2008). Such circumstances

may arise when a petitioner “diligently pursues his claims and demonstrates that

the failure to timely file was caused by extraordinary circumstances beyond his

control.” United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008)

(quotation omitted).

      First, Saenz-Jurado contends he is entitled to tolling because he did not

know how to read or write in either English or Spanish. But Saenz-Jurado only

states that despite extensive studying, he has not yet been able to pass the GED

exam. Although not written in perfect English, his federal collateral attack has

been accepted and understood by the courts. He has pointed to no evidence

beyond his bare assertion that he would not have been able to file a similarly

intelligible pleading at an earlier time. See Yang v. Archuleta, 525 F.3d 925,




                                         -5-
929-30 n.7 (10th Cir. 2008). The record does not support the conclusion that his

language difficulties are extraordinary.

      Second, and relatedly, Saenz-Jurado claims to have lacked access to legal

materials because of his language deficiencies and because of various transfers

between different federal facilities. To justify tolling under AEDPA, “[i]t is not

enough to say that the [correctional] facility lacked all relevant statutes and case

law.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998). Nor is there a

constitutional duty to provide access to legal materials in a prisoner’s preferred

language. Yang, 525 F.3d at 930. Thus, Saenz-Jurado’s lack of access to legal

materials cannot support the necessary tolling under AEDPA.

      Third, Saenz-Jurado claims he is entitled to tolling because he suffered

from mental illness. However, his allegations on this point are conclusory and

lack support in the record. For example, in his brief to this court, Saenz-Jurado

does not indicate from what mental illness he suffered; rather, he summarily

asserts that he has seen a psychologist and that he could not timely file his

application because of “mental illness.” Cf. Biester v. Midwest Health Servs.,

Inc., 77 F.3d 1264, 1268 (10th Cir. 2008) (holding that equitable tolling on the

basis of mental illness must be based on exceptional circumstances such as

adjudged incompetence or institutionalization). Thus, he has failed to

demonstrate that his mental condition constitutes an extraordinary condition. See

Gabaldon, 522 F.3d at 1124.

                                           -6-
      Fourth, Saenz-Jurado argues that his state trial attorney had a conflict of

interest because the attorney was simultaneously representing a co-defendant. We

reject this argument because Saenz-Jurado has not explained how this alleged

conflict of interest (which also appears to be one of the substantive bases for the

habeas relief he seeks) prevented him from timely filing his federal habeas

application.

      Fifth, equitable tolling is also appropriate when a defendant is actually

innocent of the crimes of which he was convicted. Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000). Saenz-Jurado argues that he is innocent because the

cocaine he was convicted of distributing belonged to someone else. But given his

concession that the cocaine was found inside the vehicle he was driving (even

though it was also occupied by another individual), he has made no showing that,

“in light of all the evidence, it is more likely than not that no reasonable juror

would have convicted him” of the offense. Bousley v. United States, 523 U.S.

614, 623 (1998) (quotation omitted). Further, Saenz-Jurado’s claim that the state

court did not establish a factual basis for his conviction faces the same

deficiency; he does not make the required showing of actual innocence.

      Finally, Saenz-Jurado challenges the district court’s refusal to appoint

counsel. Unless the district court determines that an evidentiary hearing is

required, a habeas petitioner does not have a right to counsel at this stage.

Engberg v. Wyoming, 265 F.3d 1109, 1122 n.10 (10th Cir. 2001). The decision

                                         -7-
to appoint counsel is thus within the sound discretion of the district court. Id. at

1122. Our review of the record does not reveal a reason to disturb the exercise of

that discretion in this case.

                                          III

      Accordingly, jurists of reason would not find debatable the district court’s

conclusion that Saenz-Jurado’s habeas application was time barred. Saenz-

Jurado’s application for a COA is DENIED, and his appeal is DISMISSED. His

motion for appointment of counsel is DENIED. Because we agree with the

district court that this appeal is not taken in good faith, his motion to proceed IFP

on appeal is DENIED. See 28 U.S.C. § 1915(a)(3).



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                         -8-
