                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         April 19, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 10-5141
 ETHELWALDO TORRES                                    (D.C. No.CV-09-00696-JHP &
 RODRIGUEZ,                                                 CR-06-00131-JHP)
                                                              (N.D. Okla.)

           Defendant-Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.



       Ethelwaldo Torres Rodriguez (Rodriguez), a federal prisoner appearing pro se,

seeks a certificate of appealability (COA) in order to challenge the district court’s denial

of his 28 U.S.C. § 2255 petition for a writ of habeas corpus. Because Rodriguez has

failed to satisfy the standards for the issuance of a COA, we deny his request and dismiss

this matter.

                                              I

       On August 30, 2006, Rodriguez pled guilty to possession of methamphetamine in


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). On April 30, 2007, the district

court sentenced Rodriguez to a term of 250 months’ imprisonment and five years of

supervised release. Rodriguez appealed to this court, challenging the district court’s

findings regarding the amount of methamphetamine found in his possession. On April

14, 2008, we affirmed Rodriguez’s sentence in an unpublished opinion. United States v.

Rodriguez, 285 F. App’x 518, 522 (10th Cir. 2008). Rodriguez then filed a petition for a

writ of certiorari with the United States Supreme Court, which the Court denied on

October 6, 2008.

       On October 21, 2009, Rodriguez filed a motion to vacate his sentence pursuant to

28 U.S.C. § 2255, alleging that he received ineffective assistance from his trial counsel in

violation of his Sixth Amendment rights. The district court denied Rodriguez’s § 2255

petition because it was not timely filed. Following the district court’s order, Rodriguez

filed with this court a notice of appeal and a request for a COA.

                                              II

       A petitioner must obtain a COA in order to appeal a district court’s denial of a

habeas petition. 28 U.S.C. § 2253. A COA may be issued only upon a “substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where a district court

has rejected a petitioner’s constitutional claim on the merits, the petitioner “must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).




                                              2
                                                III

       Under 28 U.S.C. § 2255(f)(1), an individual has one year from the date a judgment

of conviction becomes final to file a petition for habeas relief. In this case, Rodriguez’s

judgment of conviction became final on October 6, 2008, when the Supreme Court denied

his petition for certiorari. Thus, Rodriguez had until October 6, 2009 to file a habeas

petition. Although Rodriguez argues that he mailed the petition on October 4, 2009, the

district court concluded that he filed the petition on October 21 and denied the petition

based on the one-year statute of limitations.

       Rodriguez argues that his petition was timely under the prisoner mailbox rule. The

mailbox rule states that an inmate who places a habeas petition “in the prison’s internal

mail system will be treated as having ‘filed’ [the petition] on the date it is given to prison

authorities for mailing to the court.” Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir.

2005) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)). “However, the inmate must

attest that such a timely filing was made and has the burden of proof on this issue.” Id.

(citing United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004)). In

order to establish timely filing, an inmate must either (1) prove that he made timely use of

the prison’s legal mail system if a satisfactory system is available; or (2) if a legal mail

system is not available, prove timely use of the prison’s regular mail system by

submitting a notarized statement or a declaration under penalty of perjury indicating the

date on which the document was given to prison officials for mailing. Id. (citing

Ceballos-Martinez, 387 F.3d at 1144-45).

                                                3
       Rodriguez claims his habeas petition was timely because he placed it in the prison

mail system on October 4, 2009. He wrote on the outside of the envelope that the petition

was “Put in mailbox 10-4-09 Before the 10-6-09 deadline.” ROA Vol. 1, at 31.

Rodriguez also affirmed in the petition itself that “under penalty of perjury” the petition

was placed “in the prison mailing system on 10-3-[09].”1 Id. at 25.

       Despite evidence that Rodriguez mailed the petition by October 4, the district court

did not receive the petition until October 21 because Rodriguez placed the wrong address

on the envelope. Although he indicated that the letter was to go to the “Federal

Courthouse”, Rodriguez wrote the address for the United States Attorney’s Office in

Tulsa, Oklahoma, rather than the correct address for the federal courthouse in Tulsa. Id.

at 31. The United States Attorney’s Office forwarded the petition to the courthouse, but it

did not arrive until October 21. After receiving the habeas petition, the district court

ordered Rodriguez to provide it with “a certified copy of the prison mail log showing that

he placed his pleading in the prison mail system on or before October 6, 2009.” Id. at 72.

The district court stated that if Rodriguez “fail[ed] to establish that the envelope was, in

fact, placed in the prison mail system on or before October 6, 2009, his motion [would]

be dismissed as untimely.” Id.

       In response to the district court’s order, Rodriguez submitted a document from “D.

Lloyd”, a counselor at the Federal Correctional Complex in Forrest City, Arkansas. Id. at

       1
        Rodriguez actually stated in his habeas petition that the petition was mailed on
“10-3-06.” We assume that Rodriguez meant to indicate that the petition was mailed in
2009, not 2006.

                                              4
76. According to Lloyd, Rodriguez “sent the letter to [the] court on October 4, 2009 . . .

[but] did not send it certified so there is no way to track it from [the prison] to [the]

court.” Id. Nonetheless, Lloyd stated that he “talked to Rodriguez [on] October 4, 2009

about his case” and Rodriguez told him he was mailing the letter to [the] court” that day.

Id. Because Lloyd “was going in the direction of the institutional mail room, [he]

escorted Rodriguez[] to the mail officer and witnessed him give the letter to the officer.”

Id. Despite Lloyd’s statement on this matter, the district court concluded that

Rodriguez’s habeas petition was untimely because he “was ultimately responsible for

having his Motion to Vacate delivered to the United States Attorney’s Office and the

motion was not filed for more than fourteen days after the statute of limitations expired . .

.” Id. at 81.

       We deny Rodriguez’s request for a COA because his habeas petition is barred by

the one-year statute of limitations.2 Although Rodriguez affirmed under penalty of

perjury that he mailed his petition prior to the October 6 deadline, see id. at 25, he has not

demonstrated—as is required in this circuit—that he did not have access to a legal mail

system and thus could send his petition through regular mail and still qualify for the

mailbox rule. See Price, 420 F.3d at 1166 (the mailbox rule does not apply when an

inmate mails a document through the prison’s regular mail system without establishing

       2
         The district court denied Rodriguez’s habeas petition in large part because he sent
his petition to the wrong address. Rather than determine whether an inmate qualifies for
the mailbox rule when he uses an incorrect mailing address, we deny Rodriguez’s request
for a COA because he failed to otherwise qualify for the mailbox rule under the criteria
set forth in Price v. Philpot, 420 F.3d 1158, (10th Cir. 2005).

                                               5
that the jail did not have a legal mail system). Neither does the fact that a counselor in the

prison saw Rodriguez place the letter in the “institutional mail” system avail Rodriguez of

the mailbox rule. ROA Vol. 1, at 72. We have made clear that “[a]lleging . . . use[] [of

the] ‘institutional mails’ is insufficient to connote use of the ‘legal mail system.’” Price,

420 F.3d at 1166. Because an inmate must prove his compliance with the mailbox rule

and because Rodriguez has neither alleged nor proven that the prison in which he is

incarcerated does not have a legal mail system, the mailbox rule is inapplicable here. We

therefore conclude that his habeas petition was untimely, and we deny his request for a

COA.

                                              IV

       Accordingly, Rodriguez’s request for a COA is DENIED and this matter is

DISMISSED.

                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Chief Judge




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