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

                                    TENTH CIRCUIT                           October 17, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                              No. 14-2115
        v.                                        (D.C. Nos. 2:13-CV-00653-LH-KMB
                                                       and 1:11-CR-00290-LH-1)
 HECTOR CORDOVA,                                           (D. New Mexico)

               Defendant – Appellant.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before GORSUCH, MURPHY and McHUGH, Circuit Judges.



       Petitioner Hector Cordova, a federal prisoner appearing pro se, seeks a certificate

of appealability (COA) to appeal the district court’s dismissal of his motion for relief

under 28 U.S.C. § 2255 as untimely. We deny the COA and dismiss the appeal.

       In 2012, Mr. Cordova pled guilty to one count of distribution of methamphetamine

in violation of 21 U.S.C. § 841(b)(1)(A). He was sentenced to 188 months’


       *T
        his order is not binding precedent, except under the doctrines of law of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.
imprisonment, followed by 60 months’ supervised release. The court entered judgment

on Mr. Cordova’s conviction on June 6, 2012. Mr. Cordova did not appeal the judgment.

Accordingly, his conviction became final on or about June 20, 2012. See Fed. R. App. P.

4(b).

        On July 15, 2013, Mr. Cordova filed his Motion to Vacate and Correct Illegal

Sentence pursuant to § 2255. The basis of Mr. Cordova’s motion was that his trial

counsel was ineffective for failing to file a notice of appeal following entry of the

judgment against Mr. Cordova. Because Mr. Cordova’s § 2255 motion was filed more

than a year after his conviction became final, the district court issued an order to show

cause why the motion should not be dismissed as untimely. See 28 U.S.C. § 2255(f)

(establishing a one-year limitations period for motions for relief under § 2255).

        Though Mr. Cordova responded to the court’s order to show cause, his response

was outside the 30-day deadline established by the order. Nevertheless, the court

considered the merits of Mr. Cordova’s explanation. Mr. Cordova argued his § 2255

motion was timely because the limitations period should have been equitably tolled.

Specifically, Mr. Cordova asserted he was indisposed for approximately one month

following his sentencing because he underwent surgery and his mail was often not

delivered in a timely fashion. According to Mr. Cordova, the limitations period should

not have begun to run until August 2, 2012, when he had finished recovering from

surgery. The district court concluded Mr. Cordova had failed to demonstrate he had



                                             -2-
diligently pursued his § 2255 claim and dismissed the petition. Mr. Cordova now seeks a

COA from this court.

       A petitioner may not appeal a dismissal of a § 2255 petition without first obtaining

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

a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To do so,

the petitioner must demonstrate “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 v.

Cockrell, 537 U.S. 322, 327 (2003). “If the application was denied on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show that

jurists of reason would find it debatable . . . whether the district court was correct in its

procedural ruling.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (internal

quotation marks omitted). “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       In this case, a plain procedural bar is present. Mr. Cordova’s conviction became

final on June 20, 2012. But he did not file his § 2255 petition until July 15, 2013.1 We


       1
       Mr. Cordova asserts that he deposited his petition in the prison mail system on
June 25, 2013. Under the “prison mailbox rule,” “a prisoner’s pro se motion is deemed
                                                                            Continued . . .
                                          -3-
have routinely held that 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); United States v. Sheridan, 561 F. App’x 689, 692 (10th Cir. 2014).

Though Mr. Cordova may have been prevented from pursuing his claims during the

period in which he was indisposed due to a medical condition, he offers no explanation

for his failure to pursue his claim during the remaining term of the limitations period.

Therefore, he has not demonstrated that “extraordinary circumstances beyond his

control” prevented him from timely filing his § 2255 petition. Accordingly, we DENY

Mr. Cordova’s request for a COA and DISMISS this appeal.

                                                   ENTERED FOR THE COURT



                                                   Carolyn B. McHugh
                                                   Circuit Judge




filed on the date the prisoner delivers it into the prison mail system rather than on the date
the court clerk receives it.” United States v. Rodriguez-Aguirre, 30 F. App’x 803, 805
(10th Cir. 2002). But this rule does not help Mr. Cordova because his petition would still
have been filed more than one year after his conviction became final on June 20, 2012.
Thus, the procedural bar would still apply.

                                             -4-
