                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      January 20, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 05-2092
 v.                                                (D.C. No. CIV-04-1116)
                                                       (New Mexico)
 ALFONSO TAFOYA,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Alfonso Tafoya, a federal prisoner proceeding pro se, applies for a

certificate of appealability (COA) to challenge the district court’s dismissal of his

petition for habeas relief pursuant to 28 U.S.C. § 2255. The district court

determined Mr. Tafoya’s petition was time barred by the one-year statute of

limitations in the Antiterrorism and Effective Death Penalty Act of 1996

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
(AEDPA), see 28 U.S.C. § 2255. The court also denied his request for a COA.

Exercising jurisdiction under 28 U.S.C. § 2253(a), and construing Mr. Tafoya’s

pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we are

not persuaded “jurists of reason would find . . . debatable” the district court’s

rejection of Mr. Tafoya’s petition. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

We therefore deny Mr. Tafoya’s request for a COA.

      Mr. Tafoya pled guilty to a federal drug charge and was sentenced to sixty

months of imprisonment. Judgment was entered against him on March 4, 2003,

and he did not file a direct appeal challenging any aspect of his conviction or

sentence. Nearly nineteen months later on September 30, 2004, Mr. Tafoya filed

this habeas action challenging his sentence and claiming his Sixth Amendment

rights were violated due to ineffective assistance of counsel. In essence, Mr.

Tafoya claimed he received a much longer sentence than his counsel had led him

to expect. The district court ordered him to show cause why his petition should

not be dismissed as barred by the one year statute of limitations in ADEPA. In

response, Mr. Tafoya contended the limitations period should not begin to run

until November 23, 2003, when he allegedly learned in a letter from his attorney

“that what he had been told prior to his plea and sentencing hearing was different

from what actually took place during the sentencing hearing.” Rec., doc. 5 at 2.

He also asserted that equitable tolling applied to his case because he had


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diligently pursued his claims by writing three letters to his attorney inquiring as to

why he had received a longer sentence than expected. The district court rejected

these arguments.

      First, the court noted Mr. Tafoya could not rely on the statutory tolling

provision in § 2255(4) which directs that the limitations period “shall run from . .

. the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(4).

The court reasoned that the November 23, 2003 letter Mr. Tafoya received from

his attorney did not disclose to him any facts he did not already know at the time

of sentencing, i.e., that he did not receive the sentence he expected.

      Second, the district court rejected Mr. Tafoya’s argument that he was

entitled to equitable tolling. The court pointed out that under controlling Tenth

Circuit case law, “[e]quitable tolling is only available when an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” Rec., doc. 6 at 2 (internal

quotations and citations omitted). See also Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000). The court reasoned that Mr. Tafoya’s three letters to his

attorney did not amount to a diligent pursuit of his claims. Nor was Mr. Tafoya

able to point to anything that limited his ability to file his action within the

required tolling period. The court therefore denied Mr. Tafoya’s equitable tolling


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arguments and dismissed his petition.

      The issuance of a COA is jurisdictional, Miller-El v. Cockrell, 537 U.S.

322, 336 (2003), and can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 537 U.S. at 327. When a district court has

dismissed a habeas petition on procedural grounds, we may only issue a COA

when “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484. Based on our review of

the record on appeal, the district court’s order, and Mr. Tafoya’s submissions to

this court, we do not think jurists of reason would disagree with the district court

that Mr. Tafoya neither satisfied the requirements for statutory tolling under §

2255(4), nor presented “rare and exceptional circumstances” warranting equitable

tolling of the AEDPA limitations. Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000).

      Accordingly, we DENY Mr. Tafoya’s request for a COA and DISMISS the

appeal.

                                        ENTERED FOR THE COURT


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Stephanie K. Seymour
Circuit Judge




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