                                                                                    FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              August 29, 2017
                                      TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                              No. 17-1104
                                                      (D.C. Nos. 1:17-CV-00450-MSK &
                                                            1:12-CR-00420-MSK-1)
 JESUS ROJAS-ALVARADO,                                            (D. Colo.)

           Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.



       Jesus Rojas-Alvarado, appearing pro se, seeks a certificate of appealability (COA)

in order to challenge the district court’s denial of his motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Because Rojas-Alvarado has failed to

satisfy the standard for issuance of a COA, we deny his request and dismiss this matter.

                                                 I

       Rojas-Alvarado pleaded guilty pursuant to a written plea agreement that included

an appellate waiver provision. He pleaded guilty to three criminal counts: (1) conspiracy


       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
to possess with intent to distribute and distribution of 500 grams or more of a mixture or

substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846; (2) possession with intent to distribute 500 grams or

more of a quantity of a mixture and substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); and (3) possessing

a firearm in furtherance of a drug-trafficking crime, in violation 18 U.S.C. § 924(c)(1)(A).

Rojas-Alvarado was sentenced to a term of imprisonment of 180 months for the two drug

convictions and a consecutive term of imprisonment of 60 months on the firearm

conviction.

       Rojas-Alvarado filed a direct appeal. The government moved to enforce the

appeal waiver contained in the plea agreement. On February 6, 2014, this court issued an

order and judgment granting the government’s motion and dismissing the matter. In the

order and judgment, this court noted, in pertinent part: “To the extent that Mr. Rojas-

Alvarado wishes to pursue a claim of ineffective assistance of counsel, as indicated by his

docketing statement, he should do so in a collateral proceeding under 28 U.S.C. § 2255.”

United States v. Rojas-Alvarado, No. 13-1412, slip op. at 2-3 (10th Cir. Feb. 6, 2014).

This court’s mandate issued on February 28, 2014.

       Approximately three years later, on February 17, 2017, Rojas-Alvarado filed a pro

se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He

asserted in the motion that he was factually innocent of the firearm conviction because

“[t]he government utterly failed to show a valid nexus between the gun” that was found in

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his bedroom “and the drug trafficking activity” to which he pleaded guilty. Mot. at 3. He

in turn argued that “his guilty plea was prompted by incompetent advice of defense

counsel.” Id. at 1.

       On February 22, 2017, the district court issued an order denying Rojas-Alvarado’s

§ 2255 motion. In doing so, the district court concluded that Rojas-Alvarado’s § 2255

motion was untimely under 28 U.S.C. § 2255(f)(1) because it was filed more than one

year after his conviction became final. The district court also rejected the possibility that

the one-year limitations period could have run from the date that Rojas-Alvarado

allegedly discovered his claim:

       Although Mr. Rojas-Alvarado asserts that he only recently discovered what
       sort of factual predicate [wa]s necessary to support a conviction under §
       924(c)(1)(A), that discovery d[id] not support a later starting date under §
       2255(f)(4) because it [wa]s apparent that the facts necessary to support the
       ineffective assistance of counsel claim in the § 2255 motion were known, or
       could have been discovered through the exercise of due diligence, before
       his conviction was final. In other words, Mr. Rojas-Alvarado knew the
       factual basis for the firearm count when he agreed to plead guilty, and he
       knew what advice counsel had provided with respect to pleading guilty to
       that count. Whether he understood the legal significance of those facts is
       not relevant to the Court’s analysis under § 2255(f)(4).

Order at 3. In addition, the district court concluded that Rojas-Alvarado’s assertion of

factual innocence was insufficient to justify equitable tolling of the one-year limitation

period:

       Mr. Rojas-Alvarado fails to allege any facts to support a credible claim of
       actual innocence under Schlup[ v. Delo, 513 U.S. 298 (1995)]. Most
       importantly, he fails to present any new reliable evidence that demonstrates
       it is more likely than not that no reasonable juror would have convicted
       him. Therefore, the Court finds no basis for an equitable exception to the

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       one-year limitation period based on actual innocence.

Id. at 5. Lastly, the district court concluded that Rojas-Alvarado had failed to make a

substantial showing of the denial of a constitutional right, and therefore was not entitled

to a COA.

                                              II

       Rojas-Alvarado now seeks a COA from this court in order to appeal the district

court’s order dismissing his § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a

circuit justice or judge issues a certificate of appealability, an appeal may not be taken to

the court of appeals from . . . the final order in a proceeding under section 2255.”). To

obtain a COA, he must make “a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). A substantial showing means 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) (internal quotation marks

omitted). Where, as here, a district court dismisses a § 2255 motion on procedural

grounds, the petitioner must demonstrate “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.

       Having carefully examined Rojas-Alvarado’s application for COA and the record

on appeal, we conclude that he has failed to demonstrate that jurists of reason would find

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it debatable whether the district court was correct in dismissing his § 2255 motion as

untimely. As the district court correctly noted, a prisoner in federal custody generally has

one year to file a § 2255 motion from “the date on which the judgment of conviction

becomes final,” 28 U.S.C. § 2255(f)(1), and Rojas-Alvarado’s § 2255 motion was filed

nearly three years after his conviction became final. Further, reasonable jurists could not

disagree with the district court’s conclusions that the one-year statute of limitations was

not statutorily tolled under § 2255(f)(4) or equitably tolled based on Rojas-Alvarado’s

claim of actual innocence. Thus, we conclude that Rojas-Alvarado has failed to establish

that he is entitled to a COA.

                                             III

       Rojas-Alvarado’s motion to proceed in forma pauperis and his request for a COA

are DENIED. This matter is DISMISSED.




                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Circuit Judge




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