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

                             FOR THE TENTH CIRCUIT                        November 27, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-2085
                                              (D.C. Nos. 1:13-CV-00728-JB-GBW and
CESAR BOJORQUEZ-VILLALOBOS,                            1:11-CR-02022-JB-1)
                                                             (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
                 _________________________________

      Cesar Bojorquez-Villalobos, a federal prisoner proceeding pro se,1 seeks a

certificate of appealability (COA) permitting him to appeal the district court’s denial

of his 28 U.S.C. § 2255 motion. We construe Bojorquez-Villalobos’ COA application

as a notice of appeal and, applying the prison mailbox rule, we consider his notice of

appeal timely filed. But we deny his request for a COA and dismiss his appeal




      *
         This order and judgment is not binding precedent, except under the doctrines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.
       1
         We liberally construe pro se pleadings. But we don’t assume an advocacy
role for pro se litigants nor do we relieve them from the duty to comply with
procedural rules. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005).
because he hasn’t demonstrated that reasonable jurists would debate the district

court’s denial of his § 2255 motion.

                                    BACKGROUND

      Bojorquez-Villalobos pled guilty to conspiring to distribute methamphetamine

and to being an alien in possession of a firearm. The district court imposed a 108-

month prison sentence and a four-year term of unsupervised release. Bojorquez-

Villalobos didn’t directly appeal his convictions or sentence.

      Instead, he filed a § 2255 motion asserting (1) he was denied effective

assistance of trial counsel and counsel’s failure to adequately investigate the case

“resulted [in] prejudice with an excessive sentence[],” (2) he was “convicted with

false charges, possession of a firearm,” resulting in an improper two-level sentencing

enhancement under U.S.S.G. § 2D1.1(b), (3) he was improperly ordered to serve a

five-year term of supervised release in violation of U.S.S.G. § 5D1.1(c)2, and (4) he

was denied equal protection of the law when the Federal Bureau of Prisons assigned

him to a “second rate” private contract facility based on his immigration status.

      The magistrate judge recommended denial of the § 2255 motion,3 concluding

Bojorquez-Villalobos’ second and third grounds for relief attacked his convictions


      2
         We note for clarification purposes that Bojorquez-Villalobos’ third argument
lacks factual support because it’s clear from the record that the district court imposed
only a four-year term of unsupervised release. But, ultimately, this doesn’t alter our
analysis.
       3
         The magistrate judge initially recommended denial of the § 2255 motion as
untimely. But after considering Bojorquez-Villalobos’ objections, the magistrate
judge determined the factual circumstances warranted equitable tolling. Nevertheless,
the magistrate judge ultimately recommended denial of the motion on other grounds.
                                           2
and sentence and were procedurally barred by Bojorquez-Villalobos’ failure to file a

direct appeal. The magistrate judge also determined his equal protection claim wasn’t

properly raised in the § 2255 motion because it challenged the conditions of his

confinement. The magistrate judge rejected Bojorquez-Villalobos’ argument that trial

counsel was ineffective for failing to inform him of a laboratory report that didn't

exist at the time Bojorquez-Villalobos entered his guilty plea. Finally, the magistrate

judge noted that Bojorquez-Villalobos failed to demonstrate prejudice given that he

had “affirmed, under oath, that he had possessed the gun.” ROA, at 94-96.

      The district court overruled Bojorquez-Villalobos’ objections to the magistrate

judge’s proposed findings and recommendation, adopted the same, and dismissed the

case with prejudice. In doing so, the district court specifically rejected Bojorquez-

Villalobos’ attempt to expand his ineffective assistance of counsel claim to include

an allegation that counsel failed to argue against the two-level gun-possession

enhancement at sentencing. The district court issued its order and final judgment

denying the § 2255 motion on February 27, 2015.

      On May 18, 2015, this court received Bojorquez-Villalobos’ “Application for

Certificate of Appealability.” This court immediately forwarded the COA application

to the district court, characterizing the document as a misdirected notice of appeal.

See, e.g., Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007) (construing

combined motion for leave to proceed in forma pauperis and application for

certificate of appealability as the “functional equivalent” of a notice of appeal

because it met Fed. R. App. P. 3(c)’s notice requirements); Fed. R. App. P. 4(d)

                                            3
(providing procedures for misdirected notices of appeal). The district court clerk

docketed the COA application as a notice of appeal on May 18, 2015. The district

court didn’t rule on the COA application.

                                      DISCUSSION

      This case presents two threshold jurisdictional questions. First, we must

determine whether Bojorquez-Villalobos timely filed his notice of appeal. See Parker

v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir. 1996) (stating “[t]he filing of a

timely notice of appeal is an absolute prerequisite to our jurisdiction”). Second, if the

notice of appeal is timely, we must determine whether to grant Bojorquez-Villalobos’

renewed request for a COA.4 See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468

F.3d 711, 713 (10th Cir. 2006) (explaining that a COA “is a jurisdictional pre-

requisite to our review”).

      The district court clerk docketed Bojorquez-Villalobos’ notice of appeal on

May 18, 2015—clearly more than 60 days after the district court issued its final

judgment on February 27, 2015. See Fed. R. App. P. 4(a)(1)(B). But because

Bojorquez-Villalobos is a federal prisoner proceeding pro se, we can deem his notice

of appeal as timely filed if he satisfies the prison mailbox rule. Under this rule, a

prisoner’s submission is deemed “filed” when it’s given to prison authorities for



      4
        Even though we are construing Bojorquez-Villalobos’ COA application,
which was addressed to the district court, as a functional equivalent of a notice of
appeal, see Fleming, 481 F.3d at 1253-54, we also are construing it as a renewed
COA request addressed to this court. See Fed. R. App. P. 22(b)(2); 10th Cir. R.
22.1(A).
                                            4
mailing. Price v. Philpot, 420 F.3d 1158, 1163-65 (10th Cir. 2005); Fed. R. App. P.

4(c)(1).

       A prisoner can demonstrate compliance with the prison mailbox rule in one of

two ways. “First, ‘if the prison has a legal mail system, then the prisoner must use it

as the means of proving compliance with the mailbox rule.’” Price, 420 F.3d at 1165

(citations omitted). Second, “if the inmate does not have access to a legal mail

system—or if the existing legal mail system is inadequate to satisfy the mailbox rule”

the inmate must “‘submit a declaration [in compliance with 28 U.S.C. § 1746] or

notarized statement setting forth the notice’s date of deposit with prison officials and

attest that first-class postage was pre-paid.’” Id. (citations omitted).

       We issued an order directing Bojorquez-Villalobos to address whether his

notice of appeal complied with the prison mailbox rule. In response, he submitted a

declaration, signed under penalty of perjury, stating he gave his COA application to

prison authorities on March 25, 2015. He also submitted an “Outgoing Special Mail

Receipt” date-stamped March 25, 2015, indicating that Correctional Systems

Management received a document from Bojorquez-Villalobos that was to be mailed

to the United States District Court in New Mexico. Significantly, Bojorquez-

Villalobos also signed his COA application on March 25, 2015. Taken together,

Bojorquez-Villalobos’ submissions demonstrate his compliance with the prison

mailbox rule, and we deem his notice of appeal timely filed on March 25, 2015.




                                             5
      Nevertheless, we deny his request for a COA because reasonable jurists

wouldn’t debate the district court’s denial of his § 2255 motion. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (discussing the showing a habeas prisoner must

make to obtain a COA). Essentially, Bojorquez-Villalobos seeks to challenge his

two-level gun-possession sentencing enhancement through his § 2255 motion. As the

magistrate judge determined, this sentencing challenge is procedurally barred by

Bojorquez-Villalobos’ failure to raise it in a direct appeal. And as the district court

concluded, Bojorquez-Villalobos can’t overcome that procedural bar by belatedly

attempting to bring his sentencing challenge under the umbrella of his ineffective

assistance of counsel claim. Accordingly, we deny his request for a COA and dismiss

this appeal.




                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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