                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 23, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 RODRIGO DOMINGUEZ,

                 Petitioner-Appellant,                    No. 11-2014
          v.                                  (D.C. No. 1:10-CV-00354-JB-RLP)
 TIMOTHY HATCH, Warden; GARY                               (D. N.M.)
 KING, The Attorney General of the
 State of New Mexico,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.



      Petitioner, a state prisoner proceeding with counsel, seeks a certificate of

appealability to appeal the district court’s denial of his § 2254 habeas petition.

      In 2002, Petitioner was convicted of voluntary manslaughter, aggravated

battery, two counts of shooting from a motor vehicle, and conspiracy to tamper

with evidence. The New Mexico Court of Appeals affirmed his conviction and

sentence. The New Mexico Supreme Court similarly affirmed, but remanded



      *
        This order is not binding precedent except under the doctrines of law of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.
solely to correct a clerical error in the trial court’s judgment. The state district

court entered an amended judgment on March 21, 2005. Petitioner moved the

court to reconsider, and the court denied Petitioner’s motion on May 3, 2005.

Four months later, on September 14, 2005, the New Mexico Court of Appeals

filed its mandate on Petitioner’s direct appeal.

      In June 2006, Petitioner filed his first petition for state habeas relief. In

all, Petitioner filed and appealed four petitions for state post-conviction relief,

with several tolled days accruing between each petition. After his fourth state

petition was denied in early 2010, he filed this § 2254 habeas motion with the

federal district court. Upon the recommendation of the magistrate judge, the

district court ordered the petition dismissed because Petitioner had filed his

petition outside the statute of limitations period and failed to establish

extraordinary circumstances that would merit equitable tolling. Specifically,

Petitioner argued that even though the one-year period for filing his petition

began running on June 3, 2005, thirty days after the state district court issued its

order denying Petitioner’s motion for reconsideration, principles of equitable

tolling demanded that the period not begin to run until September 14, 2005, the

date the New Mexico Court of Appeals filed its mandate and the date Petitioner’s

former attorney told him tolling would start. The district court concluded in

relevant part that a mistake in filing dates made by Petitioner’s attorney did not

create an extraordinary circumstance that would warrant equitable tolling.

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      Because the district court dismissed the petition on procedural grounds,

Petitioner must demonstrate, inter alia, 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). “Where a plain procedural bar is present

and the district court is correct to invoke it to dispose of the case, a reasonable

jurist could not conclude either that the district court erred in dismissing the

petition or that the petitioner should be allowed to proceed further.” Id.

      Petitioner does not contest that his habeas petition was filed outside the

one-year limitations period. Thus, the threshold issue is whether the district court

erred in denying Petitioner’s claim for equitable tolling, which we review for an

abuse of discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007).

      After carefully reviewing Petitioner’s filings and the record on appeal, we

conclude that reasonable jurists would not debate whether the district court erred

in dismissing Petitioner’s claims without granting Petitioner the benefit of

equitable tolling. The district court correctly noted—as Petitioner admits in his

brief—that the crux of Petitioner’s equitable tolling argument is his reliance on

his attorney’s miscalculation of a filing deadline. On this, the law is clear.

Equitable tolling may be applied when the attorney misrepresents a filing deadline

in a particularly egregious way, see United States v. Martin, 408 F.3d 1089, 1094-

95 (8th Cir. 2005) (holding that equitable tolling applied when the attorney

informed his client there was no such thing as a one-year filing deadline and

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consistently lied to his client and the client’s wife), or deliberately hides

information from his client in order to cover up his misdeeds, see Fleming, 481

F.3d at 1255-57 (holding that petitioner was entitled to equitable tolling where

former counsel actively deceived petitioner over several months into believing he

was diligently pursuing petitioner’s legal remedies when, in fact, he was not).

But a miscalculation or misinterpretation of the statutory provision regarding the

limitation period, with nothing more, does not rise to the level of misconduct that

would justify equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 336-37

(2007) (“Lawrence argues that his counsel’s mistake in miscalculating the

limitations period entitles him to equitable tolling. If credited, this argument

would essentially equitably toll limitations periods for every person whose

attorney missed a deadline.”); Rouse v. Lee, 339 F.3d 238, 248-49 (4th Cir. 2003)

(holding that “a mistake by a party’s counsel in interpreting a statute of

limitations does not present the extraordinary circumstance beyond the party’s

control where equity should step in to give the party the benefit of his erroneous

understanding” and noting “[a] majority of other circuits agree,” citing cases from

the Second, Third, Fifth, Seventh, Eighth, Ninth, Eleventh, and Federal Circuits).

Petitioner devotes much of his brief to explaining the depth of reliance he placed

on his counsel’s statements. While the circumstances are unfortunate, we cannot

say that reasonable jurists would debate as to whether the district court erred in

its ruling.

                                          -4-
      Therefore, for substantially the same reasons stated by the district court, we

DENY the application for a certificate of appealability and DISMISS Petitioner’s

appeal.

                                              ENTERED FOR THE COURT


                                              Monroe G. McKay
                                              Circuit Judge




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