                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 30, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 JOSE GARZA,

                 Petitioner-Appellant,                  No. 11-3283
          v.                                             (D. of Kan.)
 STATE OF KANSAS,                             (D.C. No. 5:11-CV-03127-SAC)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Jose Garza, a Kansas state prisoner, seeks a certificate of appealability

(COA) to enable him to appeal the district court’s dismissal of his 28 U.S.C.

§ 2254 petition on the alternative grounds of exhaustion and timeliness. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we construe Garza’s filing

liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106,

1110 & n.3 (10th Cir. 1991). Nonetheless, no reasonable jurist could conclude


      *
         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the district court’s dismissal was incorrect. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). Accordingly, we DENY the application for a COA and DISMISS the

appeal.

                                  I. Background

      Garza pleaded guilty to robbery and attempted aggravated robbery,

receiving a sentence of 32 months in prison. In 2001, he pleaded guilty to six

additional counts of rape and one count each of robbery, aggravated robbery, and

battery, receiving a sentence of 420 months in prison. Both sentences were to run

concurrently. Garza did not directly appeal either sentence.

      In 2007, Garza filed a state habeas motion, pursuant to   KAN . STAT . ANN .

§ 60-1507, alleging that he had intended to plead guilty by reason of insanity, but

his lawyer would not allow him to do so. The state district court denied his

motion, concluding there was no substantial question of law or triable issue of

fact and that the files and records conclusively showed he was not entitled to

relief. Counsel was appointed for the purpose of allowing an out-of-time appeal

to the Kansas Court of Appeals, which subsequently affirmed the state district

court’s ruling.

      Garza filed a federal habeas petition pursuant to 28 U.S.C. § 2254, citing

due process violations and cruel and unusual punishment as grounds for relief.

The district court found Garza had not exhausted his state court remedies prior to

filing his petition, and that the claims were statutorily time-barred. The district

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court granted Garza 30 days to show cause why his petition should not be

dismissed, providing him an opportunity to show why equitable tolling should

apply to his claims. Garza’s subsequent filings failed to convince the district

court that he should qualify for equitable tolling, so his petition was dismissed on

the alternative grounds of exhaustion and timeliness.

                                    II. Analysis

      The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a

petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of

a COA. 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the applicant must

demonstrate a “substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). When the district court denies a habeas petition on procedural

grounds, a COA should issue only when the prisoner shows 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, 529 U.S. at 484.

Additionally, we review for abuse of discretion a district court’s decision that a

defendant is not entitled to have the one-year limitations period for filing a

§ 2254 petition equitably tolled. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.

2003). Garza does not satisfy this standard.

      The statute of limitations for filing a federal habeas petition is set forth in

28 U.S.C. § 2244(d)(1), and provides that:

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             A 1–year period of limitation shall apply to an application
             for a writ of habeas corpus by a person in custody pursuant
             to the judgment of a State court. The limitation period
             shall run from . . . (A) the date on which the judgment
             became final by the conclusion of direct review or the
             expiration of the time for seeking such review.

As the district court properly found, Garza’s convictions “became final” in 2000

and 2001 upon the expiration of his time to file a direct appeal, meaning that his

statute of limitations expired no later than December 31, 2002. Additionally, the

state habeas motion did not toll the limitation period, see 28 U.S.C. § 2244(d)(2),

so his motion is untimely.

      Since Garza’s habeas petition was untimely, we must consider whether he

is entitled to equitable tolling of the AEDPA limitation period. “Generally, a

litigant seeking equitable tolling bears the burden of establishing two elements:

(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

As a result, equitable tolling is appropriate only in “rare and exceptional

circumstances,” see Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); a

“garden variety claim of excusable neglect” is not enough. Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990). In his petition below, Garza makes

passing reference to his medical history and appears to imply that this history was

part of the reason for his inability to pursue his claims. As the district court

found, “[h]e has failed to even describe any such evidence in sufficient detail. He


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does not name specific medications that he was taking and present evidence that

either those medications or his alleged mental condition would have prevented

him from timely asserting his claims.” R., Vol. I at 92.

      We agree with the district court’s analysis. Nothing in Garza’s filings to

this court provides any more specificity regarding his equitable tolling argument

and instead loosely focuses on the merits of his underlying claim. Even viewing

the arguments in the light most favorable to Garza, there is no excuse for his

multiple-year delay in seeking federal relief. “[T]here comes a point at which the

delay of a plaintiff in asserting a claim is sufficiently likely either to impair the

accuracy of the factfinding process or to upset settled expectations that a

substantive claim will be barred without respect to whether it is meritorious.” Bd.

of Regents v. Tomanio, 446 U.S. 478, 487 (1980); see also Marsh v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000) (“ignorance of the law, even for an incarcerated

pro se petitioner, generally does not excuse prompt filing”) (internal quotation

omitted).

      Accordingly, this case does not present one of those “rare and exceptional

circumstances” in which the untimely filing of a federal habeas petition should be

excused.




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                          III. Conclusion

Garza’s application for a COA is denied and the appeal is dismissed.



                                            Entered for the Court,


                                            Timothy M. Tymkovich
                                            Circuit Judge




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