                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 4, 2009
                 UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 RAFAEL LAZCANO,

          Petitioner-Appellant,

 v.
                                                         No. 09-1123
                                               (D.C. No. 1:08-CV-02720-ZLW)
 ARISTEDES W. ZAVARAS,
                                                          (D. Colo.)
 Executive Director; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

          Respondents-Appellees.




                                     ORDER *

Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.


      Petitioner Rafael Lazcano (“petitioner”) asks us to grant a Certificate of

Appealability (COA), authorizing him to appeal the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set

forth below, we decline to do so.

      On June 1, 2000, petitioner was convicted in Mesa County District Court


      *
       This order is not binding precedent, except under the doctrines of law of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 F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1.
on charges of distributing cocaine, possessing drug paraphernalia, and criminal

impersonation. Subsequently, he was sentenced as an habitual criminal to forty-

eight years imprisonment. On December 6, 2001, the Colorado Court of Appeals

affirmed his conviction. On May 20, 2002, the Colorado Supreme Court denied

certiorari.

       On August 30, 2004, petitioner filed a post-conviction motion, pursuant to

Rules 35(a) and (c) of the Colorado Rules of Criminal Procedure. The trial court

denied his motion. The Colorado Court of Appeals affirmed, and the Colorado

Supreme Court denied certiorari.

       On November 27, 2006, petitioner filed a second post-conviction motion.

Once again, the district court dismissed the motion. The Colorado Court of

Appeals dismissed petitioner’s appeal from the denial of his second post-

conviction motion for failure to file a timely opening brief.

       On December 8, 2008, pursuant to 28 U.S.C. § 2254, petitioner filed a pro

se habeas petition, alleging that constitutional errors occurred at his trial and

sentencing proceedings. The magistrate judge ordered petitioner to address the

affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of

state court remedies under 28 U.S.C. § 2254(b)(1)(A) in a pre-answer response.

Subsequently, the district court denied habeas relief as untimely under the

one-year limitation period provided by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). Petitioner now appears

                                          -2-
pro se seeking to appeal to this court.

      Where, as here, the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim,

      a COA should issue when the prisoner shows, at least, 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.

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

      Pursuant to AEDPA, “a one-year period of limitation shall apply to an

application for a writ of habeas corpus running from the date on which the

judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review.” Howard v. Ulibarri, 457 F.3d 1146, 1147 (10th

Cir. 2006) (quoting 28 U.S.C. § 2244(d)(1)) (internal quotation marks and

alterations omitted). AEDPA also provides that the one-year statute of limitations

is “tolled while a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending.” Id.

(quoting 28 U.S.C. § 2244(d)(2)) (internal quotation marks and alterations

omitted).

      Although petitioner filed two post-conviction motions, “[o]nly state

petitions for post-conviction relief filed within the one year allowed by AEDPA

will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th




                                          -3-
Cir. 2006). Accordingly, absent equitable tolling of the limitations period, 1

petitioner only had until August 18, 2003 – one year and ninety days after the

Colorado Supreme Court denied certiorari review of his direct appeal 2 – to file a

post-conviction motion in state court or a habeas corpus petition in federal court.

He failed to do either.

      AEDPA’s one-year statute of limitations is also subject to equitable tolling

in rare and exceptional circumstances such as:

      when a prisoner is actually innocent, when an adversary’s conduct –
      or other uncontrollable circumstances – prevents a prisoner from
      timely filing, or when a prisoner actively pursues judicial remedies
      but files a defective pleading during the statutory period. Simple
      excusable neglect is not sufficient. Moreover, a petitioner must
      diligently pursue his federal habeas claims; a claim of insufficient
      access to relevant law, such as AEDPA, is not enough to support
      equitable tolling.

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citations and quotations

omitted).

      Petitioner argues that we should equitably toll AEDPA’s one-year statute of



      1
        Section “2244(d) is not jurisdictional and as a limitation may be subject to
equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
      2
         Because petitioner did not file a petition for certiorari to the United States
Supreme Court, the one-year period of limitation started to run ninety days after
May 21, 2002. See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999) (for
purposes of section 2244(d)(1), “the judgment is not final and the one-year
limitation period for filing for federal post-conviction relief does not begin to run
until after the United States Supreme Court has denied review, or, if no petition
for certiorari is filed, after the time for filing a petition for certiorari with the
Supreme Court has passed.”); see also S UP . C T . R. 13.

                                          -4-
limitations because: (1) “he was transferred to Oklahoma at the NFCF which had

no legal research tools,” and (2) the Colorado Court of Appeals refused “to

appoint counsel to litigate the ‘second’ postconviction motion appeal” and

“supply [petitioner] with the record on appeal on loan so that he could prepare his

appeal pro-se.” Rec. at 308. However, petitioner does not explain, and we cannot

see, how these alleged obstacles surrounding his second post-conviction appeal in

2006 prevented him from meeting AEDPA’s filing deadline of August 18, 2003.

Therefore, petitioner’s December 8, 2008 habeas petition was not timely.

      Based on the foregoing, we conclude that jurists of reason would not find it

debatable whether the district court was correct in its procedural ruling.

Accordingly, we DENY petitioner’s applications for a COA and DENY his in

forma pauperis application.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




                                         -5-
