                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            April 1, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 JUAN CARLOS MUNOZ,

           Petitioner–Appellant,

 v.
                                                             No. 10-2267
 ERASMO BRAVO, Warden;                           (D.C. No. 6:10-CV-00654-RB-WPL)
 ATTORNEY GENERAL FOR THE                                     (D.N.M.)
 STATE OF NEW MEXICO,

           Respondents–Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.



       Juan Carlos Munoz, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. We deny a COA and dismiss the appeal.

                                             I

       Munoz was convicted in New Mexico state court of second degree murder,


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
shooting at or from a motor vehicle, aggravated battery, and two counts of aggravated

assault. He was sentenced to twenty-five years’ imprisonment on December 16, 2002.

Munoz’s conviction was affirmed on direct appeal. The New Mexico Supreme Court

initially granted certiorari, but quashed its grant on December 5, 2005. Munoz’s

convictions became final on March 6, 2006, when his time to file a petition for certiorari

with the United States Supreme Court expired. See Sup. Ct. R. 13(1).

       Munoz filed a state habeas petition on October 30, 2008. His petition was

dismissed on April 29, 2010. He filed a petition for writ of certiorari seeking review of

that dismissal from the New Mexico Supreme Court on May 13, 2010, which was denied

on June 15, 2010.

       On July 12, 2010, Munoz filed a § 2254 petition in the United States District Court

for the District of New Mexico. In a section of his petition discussing the limitations

period contained in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

Munoz alleged that “[a]t the time of pending appeals from trial, the law library at [the

two prisons in which he was held] did not have AEDPA legal information.” After

respondents argued that the petition was time barred, a magistrate judge ordered Munoz

to address the timeliness issue. Munoz again noted that during the time he “was on direct

appeal and at the commencement of post-conviction remedies,” he was detained in

prisons that lacked “AEDPA legal information.”

       A magistrate judge issued proposed findings recommending that Munoz’s petition

be denied as untimely. Munoz objected to the recommendation, claiming that he was
                                            -2-
denied access to AEDPA-related legal materials “from June 10, 2003[,] until February 8,

2006.” The district court adopted the magistrate judge’s proposed findings, dismissed

Munoz’s petition, and denied COA. Munoz now seeks a COA from this court.

                                              II

       Munoz may not appeal the district court’s decision unless this court grants him a

COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make

such a showing, Munoz must demonstrate “that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different

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

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

       AEDPA imposes a one-year time limit on habeas petitions filed by state prisoners.

§ 2244(d). The limitations period usually runs from the date a conviction became final—

which in Munoz’s case, was March 6, 2006. However, Munoz argues that his AEDPA

limitations period is governed by § 2244(d)(1)(B), which begins the clock on “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.” Munoz contends the absence of AEDPA-related legal

materials in the prisons in which he was housed constituted an impediment to filing.

       We need not reach the issue of whether the insufficiency of materials in a prison’s

legal library constitutes an impediment to filing within the meaning of § 2244(d)(1)(B).
                                             -3-
See Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir. 2003) (absence of AEDPA in prison

library is an impediment allowing for statutory tolling). But see Williams v. Estep, 259

F. App’x 69, 71-72 (10th Cir. 2007) (unpublished) (absent allegation of diligence in

obtaining a copy of AEDPA, knowledge of AEDPA, or identification of causal link

between library’s deficiency and inability to file, statutory tolling is not implicated by

prison library’s failure to keep a copy of AEDPA).

       Assuming § 2244(d)(1)(B) applies, Munoz did not allege that he was kept in a

facility without access to AEDPA for a sufficient period to make his petition timely. In

his objections to the magistrate judge’s recommendation, Munoz claims that he was

without access to AEDPA “from June 10, 2003[,] until February 8, 2006.” This claim is

consistent with the allegation in his petition that he was denied access to AEDPA “[a]t

the time of pending appeals from trial.”1

       If the AEDPA limitations period began to run when the alleged impediment was

removed on the date suggested by Munoz—February 8, 2006—it would have expired on

February 9, 2007, which is well before Munoz filed his state or federal habeas petitions.

See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (pendency of state post-

conviction proceedings tolls AEDPA statute of limitations, but only when “filed within

the one year allowed by AEDPA”).


       1
       According to Munoz’s petition, the New Mexico Supreme Court issued its
mandate dismissing certiorari of his direct appeal on February 8, 2006.


                                             -4-
       For the same reason, Munoz cannot prevail on the basis of equitable tolling.

Equitable 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.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Even if we

toll the period during which Munoz claims he was denied access to AEDPA, his petition

would still be untimely.2

                                            III

       Because his petition is time-barred, we DENY Munoz’s request for a COA and

DISMISS his appeal.



                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge




       2
          Munoz also claimed in his response to the government’s timeliness argument that
he was denied access to AEDPA “at the commencement of post-conviction remedies.”
But it is the period between the completion of his direct appeals and the initiation of his
state post-conviction proceedings that exhausted his AEDPA limitations period. For this
time period, Munoz failed to allege he was denied access to AEDPA.


                                           -5-
