                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 30, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                         FOR THE TENTH CIRCUIT
                     _________________________________

FABIAN VILLANUEVA,

      Petitioner-Appellant,

v.                                                      No. 15-2064
                                               (D.C. No. 2:14-CV-00594-SCY)
JAMES FRAWNER, Warden, GARY                           (D. New Mexico)
K. KING, New Mexico Attorney
General,

      Respondents-Appellees.
                  _________________________________

        ORDER DENYING A CERTIFICATE OF APPEALABILITY
                  AND DISMISSING THE APPEAL
                _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. Fabian Villanueva was convicted of state crimes in 2008, and the

limitations period allowed the filing of a habeas action within one year. 28 U.S.C.

§ 2244(d)(1) (2012). He filed a federal habeas petition, but not until 2014.

Because Mr. Villanueva did not file the habeas petition within one year, the

district court dismissed the action based on timeliness. Mr. Villanueva wants to

appeal. To do so, however, he needs a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A) (2012). We can issue the certificate only if reasonable jurists

would find the district court’s decision reasonably debatable. Laurson v. Leybda,
507 F.3d 1230, 1232 (10th Cir. 2007). None would; as a result, we (1) decline to

issue a certificate of appealability and (2) dismiss the appeal.

I.    Timeliness

      Any reasonable jurist would deem the petition to be untimely.

      A.     The One-Year Deadline

      The limitations period ordinarily begins when the conviction became final.

28 U.S.C. § 2244(d)(1)(A) (2012). The conviction became final in 2008. Thus,

Mr. Villanueva ordinarily would have had to file a federal habeas petition by

2009. Because Mr. Villanueva did not file a federal habeas petition by 2009, the

action would generally be considered time-barred.

      B.     Equitable Tolling

      But he urges equitable tolling based on ignorance of the law, delay in

providing his case file, and lack of access to research materials. No reasonable

jurist would credit any of these arguments.

      Equitable tolling may be available when prisoners diligently pursue their

rights, but are unable to timely file because of extraordinary circumstances.

Holland v. Florida, 560 U.S. 631, 649 (2010).

      We have held that ignorance of the law does not ordinarily excuse timely

filing. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Mr. Villanueva has

not alleged any extraordinary factors to justify departure from our general rule.




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      Nor has he alleged extraordinary circumstances from the delay in obtaining

his case file. In district court and on appeal, Mr. Villanueva alleged that he was

unable to get his case file for roughly 2½ years. But he took over 4 years to file a

habeas petition in either state court or federal court. Thus, the 2½ year delay

would not fully account for Mr. Villanueva’s failure to timely file. For example,

he acknowledges that once he obtained his case file, he spent roughly a year

reviewing the file and additional time compiling his notes and drafting the

petition. Doc. 8 at 3. In taking that time, he acknowledges that he mistakenly

thought that he had as much time as he wanted to seek federal habeas relief on

newly raised issues. Doc. 8 at 4. In these circumstances, no reasonable jurist

could credit Mr. Villanueva’s theory of equitable tolling based on a delay in

obtaining his case file.

      The same is true regarding the alleged lack of access to research materials.

For this theory, Mr. Villanueva faces two insurmountable hurdles. First, he “could

raise only issues previously submitted in state court, so much of the research

would already have been done.” Coppage v. McKune, 534 F.3d 1279, 1282 (10th

Cir. 1982). Second, he admittedly took more than 1 year to review his file,

compile his notes, and draft the petition. Doc. 8 at 3–4. He does not attribute any

portion of his delay to the restrictions on his access to research materials. In light

of Mr. Villanueva’s own allegations, no reasonable jurist would credit his theory

of equitable tolling.

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      C.     State-Created Impediments

      Mr. Villanueva also relies on 28 U.S.C. § 2244(d)(1)(B), which extends the

period of limitations when the State creates an impediment to the timely filing of

a habeas action. 28 U.S.C. § 2244(d)(1)(B) (2012). In Mr. Villanueva’s view, the

State impeded his filing by thwarting access to his case file and research

materials. All reasonable jurists would reject this argument.

      Even if the restrictions otherwise sufficed under § 2244(d)(1)(B), Mr.

Villanueva could not convince reasonable jurists of his inability to timely file in

the face of these so-called “impediments.” Mr. Villanueva admits that he took

more than one year to review his file and draft the habeas petition. That time

would have rendered the habeas action late even if Mr. Villanueva had obtained

immediate, unlimited access to his case file and research materials.

      D.     Actual Innocence

      In objecting to the magistrate judge’s proposed ruling, Mr. Villanueva

asserted actual innocence. In theory, a showing of actual innocence would allow

Mr. Villanueva to avoid the one-year period of limitations. McQuiggin v. Perkins,

__ U.S. __, 133 S. Ct. 1924, 1928 (2013). But to make this showing, he had to

present new evidence showing that no reasonable juror would likely have found

him guilty. Schlup v. Delo, 513 U.S. 298, 329 (1995).

      Mr. Villanueva has not urged actual innocence in his application for a

certificate of appealability. But even if we were to liberally construe his

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application to include this theory, all reasonable jurists would reject this theory

because he did not present the district court with any new evidence. Instead, he

simply alleged the State had exculpatory evidence. In the absence of any new

evidence, all reasonable jurists would reject Mr. Villanueva’s theory of actual

innocence.

II.   Conclusion

      Because any reasonable jurist would regard the habeas action as untimely,

we decline to issue a certificate of appealability. Because the certificate is

necessary for Mr. Villanueva to continue, we dismiss the appeal.


                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




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