                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS January 16, 2008

                                  TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                  Clerk of Court


 RUDY O. CABRERA,

                 Petitioner-Appellant,                  No. 07-1342
          v.                                        District of Colorado
 ARI ZAVARAS, Executive Director              (D.C. No. 07-CV-01189-ZLW)
 of the Department of Corrections and
 JOHN SUTHERS, The Attorney
 General of the State of Colorado,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABLITY *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


      Rudy Orlando Cabrera, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Cabrera has failed to

make “a substantial showing of the denial of a constitutional right,” we deny his

request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On July 13, 2001, Mr. Cabrera pleaded guilty to felony theft of an ankle

bracelet transmitter, valued between $500 and $525, in Weld County District

Court in Greeley, Colorado. He was sentenced to a four–year term of

imprisonment to be followed by three years of mandatory probation. According

to Mr. Cabrera, in September 2001, he discovered that the ankle bracelet was

worth less than $500, which would make his crime a misdemeanor. He

immediately filed a collateral state postconviction motion challenging the legality

of his sentence. In June 2003 he filed another postconviction motion under Colo.

R. Crim. P. 35(c). According to Mr. Cabrera, both motions were denied by the

Colorado Supreme Court in August, 2005.

      On February 10, 2006, Mr. Cabrera filed a habeas petition attacking his

theft conviction pursuant to 28 U.S.C. § 2254, along with an application to

proceed in forma pauperis. The Magistrate Judge ordered Mr. Cabrera to submit

his Petition and Application on the proper court-approved forms, and to file a

certified copy of his inmate trust fund account statement. Mr. Cabrera failed to

do so, and his Petition was denied and dismissed without prejudice.

      Mr. Cabrera filed a new habeas petition with the district court on June 6,

2007. The magistrate judge ordered Mr. Cabrera to show cause why his petition

was not timed-barred. Mr. Cabrera responded on July 25, 2007. The district




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court found the petition time-barred and therefore denied it. Mr. Cabrera seeks to

appeal this denial.

                                       Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      A criminal defendant must seek a writ of habeas corpus within one year of

the date his conviction became final, or it is time-barred. 28 U.S.C. § 2244(d). 1

      1
          28 U.S.C. §2244(d) states:

(1) 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 the latest of—
       (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;

      (B) the date on which the impediment to filing an application created by State
      action in violation of the Constitution or laws of the Untied States is removed, if
      the applicant was prevented from filing by such State action;

      (C) the date on which the constitutional right asserted was initially recognized by
                                                                           (continued...)

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Mr. Cabrera’s conviction became final on August 27, 2001, when his time to file

a direct appeal expired. See Colo.App. R. 4(b); Colo. App.R. 26(a). He filed

post-conviction motions in September 2001, which tolled the running of the

statute of limitations for his habeas petition. 28 U.S.C. § 2244(d)(2); Pace v.

DiGuglielmo, 544 U.S. 408, 410 (2005). The post-conviction petitions were

dismissed in August 2005. Therefore, twenty months elapsed before Mr. Cabrera

properly filed his habeas petition on May 29, 2007. His petition is time-barred.

      Mr. Cabrera offers several arguments to excuse his late filing, none of

which has merit. First, he argues that he was unable to file a habeas petition until

January 30, 2007, because he was not in custody for the violation he is now

challenging prior to that date. 28 U.S.C. § 2254. In August 2004, after serving

three years in Colorado for his theft conviction, Mr. Cabrera was released on

parole and subsequently deported to Guatemala. He was caught illegally

reentering the country in 2005 and was detained in Las Cruces, New Mexico due

to an active Colorado arrest warrant for his parole violation. He was sentenced

for illegal reentry in May 2005, and imprisoned in California; he was extradited

to Colorado upon release on January 30, 2007 because of the active warrant. It


      1
          (...continued)
      the Supreme Court, if the right has been newly recognized by the Supreme Court
      and made retroactively applicable to cases on collateral review; or

      (D) the date on which the factual predicate of the claim or claims presented
      could have been discovered through the exercise of due diligence.


                                          -4-
was only then that Mr. Cabrera believed he could file a habeas petition

challenging his theft conviction, because he was “in custody” in Colorado.

      However, Mr. Cabrera was “in custody” with respect to the theft charge,

pursuant to 28 U.S.C. § 2254, while incarcerated in Las Cruces and in California.

During that period, he had a detainer placed on him because of his parole

violation. A detainer warrant is sufficient “custody” to confer habeas corpus

jurisdiction. Braden v. 30th Judicial Circuit Ct. of Ky, 410 U.S. 484, 488–89

(1973); see also Estelle v. Dorrough, 420 U.S. 534, 536 n.2 (1975). Because

Colorado placed an arrest warrant on Mr. Cabrera, he was free to file his habeas

petition while in New Mexico and California.

      Mr. Cabrera next claims that his untimeliness is attributable to his appellate

attorney’s erroneous advice. According to Mr. Cabrera, his attorney told him that

he could not file a habeas petition challenging his Colorado conviction while in

custody at Las Cruces. His argument sounds in principle of equitable tolling,

which allows a petitioner to file a late petition if he has been diligent in pursuing

his rights and can point to some extraordinary circumstance that prevented him

from filing a timely petition. See Pace, 544 U.S. at 418; Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990). While we are sympathetic to the

difficulties present in navigating the complexities of habeas corpus law, erroneous

advice by appellate counsel is not an “extraordinary circumstance” for equitable

tolling purposes. There is no right to effective assistance of counsel on habeas

                                          -5-
corpus, Coleman v. Thompson, 501 U.S. 722, 752–53 (1991); therefore, any

misunderstandings of the law are attributable directly to Mr. Cabrera.

      Mr. Cabrera’s final argument is that he was unable to file a timely habeas

petition because he did not know the value of the ankle transmitter until

September, 2001. Even if true, this late-acquired knowledge does not affect the

time that ran between the dismissal of Mr. Cabrera’s state post-conviction

petitions in August 2005 and the filing of his federal habeas petition in May 2007.

                                    Conclusion

      Accordingly, we DENY Mr. Cabrera’s request for a COA and DISMISS

this appeal.

      Petitioner’s motion to proceed in forma pauperis is also DENIED.



                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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