                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 11, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 FRANK VIGIL, JR.,

          Petitioner-Appellant,

 v.
                                                        No. 08-1233
 SUSAN JONES, Warden;                           (D.C. No. 08-cv-00509-ZLW)
 THE ATTORNEY GENERAL OF                                 (D. Colo.)
 THE STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



      Frank Vigil, Jr. (“Vigil”), a Colorado state prisoner appearing pro se,

applies for a certificate of appealability (“COA”) in order to appeal the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely.

Vigil also moves for leave to proceed in forma pauperis (“ifp”). Exercising




      *
        This order is not binding precedent except under the doctrines of law of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.
jurisdiction under 28 U.S.C. § 2253(c)(1), we deny a COA, deny the motion to

proceed ifp, and dismiss Vigil’s appeal.

I.    Procedural background

      In 1998, when he was sixteen years old, Vigil was convicted by a Colorado

jury of first-degree murder, second-degree kidnaping involving sexual assault,

first-degree assault, conspiracy to commit first-degree murder, conspiracy to

commit second-degree kidnaping, and crimes of violence. He was sentenced to

life in prison without parole on the murder count, and a total of 150 years’

imprisonment on the remaining counts. On direct appeal, Vigil argued that he had

been denied a fair trial because of the trial court’s admission of highly prejudicial

testimony and photographs. The Colorado Court of Appeals affirmed his

convictions, and the Colorado Supreme Court denied certiorari review. Ninety

days later, on March 27, 2000, his conviction became final. 1 After more than six

years had elapsed, on October 25, 2006, Vigil filed a motion for postconviction

relief under Rule 35(c) of the Colorado Rules of Criminal Procedure. The trial

court denied that motion, the Colorado Court of Appeals affirmed the denial, and

on October 8, 2007, the Colorado Supreme Court denied certiorari review. Vigil

filed his § 2254 petition with the district court on March 5, 2008.




      1
      Vigil did not file a petition for writ of certiorari in the United States
Supreme Court.

                                           -2-
      In his habeas petition, Vigil made five claims: (1) that he was denied due

process when the trial court did not order an inquiry into his competency, despite

his age (sixteen) when he was tried and convicted; (2) that he received ineffective

assistance of counsel at trial and on appeal; (3) that there exists newly discovered

evidence of his innocence; (4) that he was wrongfully convicted; and (5) that

there was justifiable excuse for his delay in filing the habeas petition because he

had been incompetent, due to his age and to having been held in solitary

confinement for much of his imprisonment, until “at least 2006.” Respondents

filed a Pre-Answer Response arguing that Vigil’s petition was barred by the one-

year limitation period, 28 U.S.C. § 2244(d), 2 and the exhaustion requirement, 28

      2
        Section 2244(d)(1) provides that “[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 statutory period begins to run on
the latest of the following:
       (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;
       (B) the date on which the impediment to filing an application created
       by State action in violation of the Constitution or laws of the United
       States is removed, if the applicant was prevented from filing by such
       State action;
       (C) the date on which the constitutional right asserted was initially
       recognized by the Supreme Court, if the right has been newly
       recognized by the Supreme Court and made retroactively applicable
       to cases on collateral review; or
       (D) the date on which the factual predicate of the claim or claims
       presented could have been discovered through the exercise of due
       diligence.
28 U.S.C. § 2244(d)(1). Finally, the “time during which a properly filed
application for State post-conviction or other collateral review with respect to the
                                                                        (continued...)

                                         -3-
U.S.C. § 2254(b)(1)(A), imposed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”).

      Concluding that Vigil had asserted no reason, under § 2244(d)(1)(B)-(D),

that the limitation period should have begun to run later than the date on which

his conviction became final, and that he had made no argument sufficient to

support equitable tolling of the limitation period or to demonstrate his actual

innocence, the district court found that his habeas petition should have been filed

no later than March 27, 2001. As a result, the district court dismissed his petition

as procedurally barred by AEDPA’s one-year statute of limitations. The district

court later denied Vigil’s request for a COA and his motion to proceed ifp on

appeal, finding that his appeal was not taken in good faith because he had not

shown the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised. (Order Denying Leave; Order Denying COA.) This

application for COA and motion for leave to proceed ifp followed.

II.   Standard for issuance of COA

      “A COA is a jurisdictional prerequisite to our review.” Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322,

336 (2003)). We will issue a COA “only ‘if the applicant has made a substantial

showing of the denial of a constitutional right.’” United States v. Silva, 430 F.3d

      2
        (...continued)
pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” Id. § 2244(d)(2).

                                        -4-
1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)). “To make this

showing, [Vigil] must establish that ‘reasonable jurists could debate whether . . .

the petition should have been resolved by the district court in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.’” Clark, 468 F.3d at 713 (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000) (alteration omitted)). Furthermore, because the district court dismissed

Vigil’s habeas petition on procedural grounds, Vigil “must demonstrate 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.” Id.

(quotation omitted).

III.   Discussion

       Because Vigil’s § 2254 motion and application for COA are pro se, we

construe them liberally. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002)

(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

       Vigil raises three arguments in his application for COA: (1) that the one-

year limitation period imposed by 28 U.S.C. § 2244(d) should be equitably tolled

until 2007 because he was denied effective assistance of counsel in seeking post-

conviction relief; (2) that the one-year limitation period imposed by 28 U.S.C.

§ 2244(d) should be equitably tolled until 2007 due to his incompetence, which

derived from both his age and his incarceration in solitary confinement; and (3)

                                          -5-
that he was denied due process of law when he was tried, convicted and sentenced

while he was incompetent due to his age. We address each argument in turn.

      A.     Equitable tolling due to ineffective assistance of counsel in seeking
             post-conviction relief

      To be eligible for equitable tolling, Vigil must make a two-pronged

demonstration: “(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way,” Yang v. Archuleta, 525 F.3d

925, 928 (10th Cir. 2008) (quoting Lawrence v. Florida, 549 U.S. 327, 127 S. Ct.

1079, 1085 (2007)), so as to prevent him from timely filing his habeas petition.

Vigil’s burden in making this demonstration is a heavy one: we will apply

equitable tolling only if he is able to “‘show specific facts to support his claim of

extraordinary circumstances and due diligence.’” Id. (quoting Brown v. Barrow,

512 F.3d 1304, 1307 (11th Cir. 2008)).

      Vigil first argues that AEDPA’s one-year limitations period should be

equitably tolled because he has not received effective assistance of counsel while

seeking post-conviction relief. (Doc. 8 (Reply to Resp.) at 1; Opening Br. at 3.)

However, because there is no right to counsel in post-conviction proceedings, “a

petitioner cannot claim constitutionally ineffective assistance of counsel in such

proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that

prisoners have a constitutional right to counsel when mounting collateral attacks


                                         -6-
upon their convictions . . . . Our cases establish that the right to appointed

counsel extends to the first appeal of right, and no further.”); United States v.

Prows, 448 F.3d 1223, 1229 (10th Cir. 2006).

      Vigil also asserts that, as a pro se litigant, he should be excused from

knowledge of AEDPA’s one-year limitation period (Opening Br. at 3). However,

in the absence of a showing of “specific facts to support [a] claim of

extraordinary circumstances and due diligence,” Yang, 525 F.3d at 928, pro se

status and ignorance of the law do not entitle Vigil to equitable tolling, see Marsh

v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Vigil has made no such showing

of specific facts.

      Because Vigil does not have a right to counsel in seeking post-conviction

relief, and because he has not shown extraordinary circumstances related to his

pro se status, we deny a COA as to this issue.

      B.     Equitable tolling due to incompetence

             i.      Incompetence due to age

      Vigil argues that we should equitably toll the one-year limitation period

because he was only sixteen years old when he was convicted of his crimes, and

did not mature at the normal rate because he was immediately held in solitary

confinement (Doc. 3 (habeas petition) at 9-10; Application at 4). Vigil relies

heavily on Tate v. State, 864 So. 2d 44 (Fla. Dist. Ct. App. 2003). In Tate, the

Florida Court of Appeals held that due process required a competency evaluation,

                                         -7-
by the trial court, for a twelve-year-old murder defendant with an IQ of

approximately ninety. Id. at 48. Vigil has failed to demonstrate, however, that he

was or is in any way similar to a twelve-year-old with an IQ of 90. In addition,

nothing in the record constitutes such a “factual showing of mental incapacity,”

Lawrence, 127 S. Ct. at 1086.

      Furthermore, for the purposes of acting on one’s own behalf in a court of

law, the age of majority in Colorado is eighteen. Colo. Rev. Stat. Ann. § 13-22-

101 (West 2008). Colorado’s Juvenile Justice System statute thus defines “child”

as “a person under eighteen years of age.” Id. § 19-1-103(18). When Vigil’s

conviction became final and the § 2241(d) limitation period began to run on

March 27, 2000, he was nineteen years old. Therefore, his argument in this

regard lacks merit.

             ii.      Incompetence due to solitary confinement

      Vigil also argues that we should equitably toll the limitation period until

2007 because he has been held in solitary confinement for all but eight months of

his incarceration, and was incompetent while he was so held. (Application at 4.)

Vigil’s own explanation of his situation defeats this argument, as the eight-month

span in which he was not in solitary confinement ran from November 28, 2002,

through July 1, 2003. (Doc. 3 (habeas petition) at 10.) Yet he began filing his

motions for post-conviction relief on October 25, 2006, when he was again in




                                         -8-
solitary confinement. Clearly, then, being held in solitary confinement did not

render Vigil incompetent to pursue habeas relief.

       Because Vigil has not shown extraordinary circumstances or due diligence

related to his claims of incompetence, we deny a COA as to this issue.

       C.     Denial of due process due to incompetence at time of conviction

       Because we conclude that the district court correctly dismissed Vigil’s

habeas petition as procedurally barred under 28 U.S.C. § 2244(d), we do not reach

this issue.

IV.    Conclusion

       For the foregoing reasons, and because Vigil has failed to set forth facts

demonstrating his actual innocence, we DENY Vigil’s request for a certificate of

appealability and DISMISS his appeal. Agreeing with the district court’s finding

that the appeal was not taken in good faith, we also DENY Vigil’s motion for

leave to proceed ifp.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         -9-
