                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 30, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 GEORGE VALLEZ,

          Petitioner-Appellant,

 v.
                                                       No. 08-1346
 STEVE HARTLEY, Warden, and THE
                                                (D.C. No. 08-CV-583-ZLW)
 ATTORNEY GENERAL OF THE
                                                        (D. Colo.)
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      George Vallez was convicted in Colorado state court on charges of second

degree burglary and first degree sexual assault on August 7, 1997. He was

sentenced to consecutive prison terms of 48 and 64 years and a period of

mandatory parole. Mr. Vallez challenged his sentence and conviction in Colorado



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order is not binding precedent except under the doctrines of law of the case, res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.
state court through a direct appeal and several state post-conviction motions.

With the exception of a state court order granting Mr. Vallez’s motion to modify

his sentence from one imposing mandatory parole to one imposing discretionary

parole, because it found the mandatory parole term was in violation of state law,

Mr. Vallez’s challenges to his conviction and sentence in state court were largely

unsuccessful.

      On March 7, 2008, Mr. Vallez turned his efforts to federal court, filing a

pro se federal habeas petition under 28 U.S.C. § 2254. The district court

dismissed the petition as time-barred, and Mr. Vallez now seeks a certificate of

appealability (“COA”) from us in order to appeal the district court’s order. Mr.

Vallez also renews his motion to proceed in forma pauperis.

      We may issue a COA only if the petitioner makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district

court dismisses a § 2254 petition on procedural grounds, as it did in this case, we

may issue a COA only if “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). Based on our independent review of the record in this case, and

affording solicitous consideration to Mr. Vallez’s pro se court filings, see Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we agree with the

district court that Mr. Vallez has not met this threshold.




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      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), motions to vacate a conviction under § 2254 must typically be made

within one year from the date on which the conviction became final. 28 U.S.C.

§ 2244(d)(1)(A). Mr. Vallez’s judgment and conviction became final on

December 6, 1999, when the time for seeking review in the United States

Supreme Court expired. Although the one-year limitations period must be tolled

while a prisoner pursues state court post-conviction relief, 28 U.S.C.

§ 2244(d)(2), over two years passed between the termination of Mr. Vallez’s first

state post-conviction proceeding on February 29, 2000, and the filing of his

second on August 29, 2002. Since no state post-conviction proceeding was

pending during this time period, the statute of limitations was no longer tolled

and any subsequently filed § 2254 petition was well outside the one-year

limitations period.

      Notably, Mr. Vallez appears to concede that the one-year limitations period

expired in August of 2002. See Opening Br. at 3-A (“The Appellant states that he

does not deny that the one-year limitation period had passed between January

2000 through August 2002.”). He nonetheless presents two arguments for why

the statute of limitations should not bar his petition. We find neither availing.

      First, Mr. Vallez submits that there was an “impediment” that prevented

him from filing his § 2254 application. We presume that Mr. Vallez is referring

to 28 U.S.C. § 2244(d)(1)(B), which delays the start of the one-year limitations

                                         -3-
period if there is an “impediment to filing an application created by State action

in violation of the Constitution or laws of the United States.” Mr. Vallez

contends that his original sentence was illegal under Colorado state law because it

imposed mandatory parole as opposed to discretionary parole, and that this

constituted an impediment that prevented him from filing a § 2254 application.

Mr. Vallez does not explain, however, how being sentenced in a manner that

allegedly violated state law in any way prevented him from pursuing federal

habeas relief. Neither has Mr. Vallez demonstrated, nor can we discern, how any

alleged impediment was “created by State action in violation of the Constitution

or laws of the United States.”

      Second, Mr. Vallez contends that, because his sentence was partially

modified in state post-conviction proceedings, the one-year limitations period

restarted when the modified sentence became final on April 2, 2007 – the date the

Colorado Supreme Court declined to review it. The Sixth Circuit has held that

the one-year limitations period for a habeas petition challenging a resentencing

judgment begins “on the date that the resentencing judgment became final, rather

than the date that the original judgment became final.” Linscott v. Rose, 436 F.3d

587, 591 (6th Cir. 2006). The Eleventh Circuit has gone a step further, holding

that where a habeas petitioner brings a claim challenging a resentencing decision,

the resentencing restarts the limitations period for all claims in the application,

even those that arise from the original conviction. Walker v. Crosby, 341 F.3d

                                         -4-
1240, 1246 (11th Cir. 2003). But even if we assume (without granting) that Mr.

Vallez’s sentencing modification constitutes a “resentencing” sufficient to restart

the limitations period under Linscott or Walker, and that the reasoning of those

cases were adopted in this circuit, those cases require the prisoner to bring at least

some claim challenging the resentencing, as opposed to the original conviction.

As the district court correctly noted, however, Mr. Vallez seeks to challenge only

his original conviction. He presents no claims associated with the modification of

his sentence. Indeed, it would be strange for him to do so given that he sought

and received the modification from mandatory to discretionary parole.

      We are aware of no authority suggesting that resentencing can restart the

limitations period when the prisoner seeks to bring only claims challenging his

original conviction, as Mr. Vallez attempts to do here. Accordingly, the

limitations period in this case began the date his original conviction became final.

Though the one-year period was undoubtedly tolled while state post-conviction

motions were pending, more than two years passed between the termination of his

first post-conviction motion and the filing of his second, as Mr. Vallez

acknowledges. And during that time, Mr. Vallez’s opportunity to pursue federal

habeas relief expired.

      Because reasonable jurists could not debate that Mr. Vallez’s petition is

time-barred, his request for a COA is denied and this appeal is dismissed.

Finally, because we agree with the district court’s determination that Mr. Vallez

                                         -5-
has not shown the existence of a nonfrivolous argument in support of the issues

raised on appeal, we deny his motion to proceed in forma pauperis.



                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




                                       -6-
