                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                    TENTH CIRCUIT                                 July 18, 2018

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 STEVEN VALLES,

               Petitioner - Appellant,

 v.                                                              No. 18-1116
                                                        (D.C. No. 1:17-CV-02707-LTB)
 MATTHEW HANSEN, Warden, Sterling                               (D. Colorado)
 Correctional Facility; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

               Respondents- Appellees.


                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY*


Before LUCERO, HARTZ, and McHUGH, Circuit Judges.



       Petitioner Steven Valles, a Colorado state prisoner proceeding pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s dismissal of his

habeas petition brought under 28 U.S.C. § 2254. He also seeks leave to proceed in forma

pauperis in this court. The district court dismissed Mr. Valles’s petition as untimely under



       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. Valles is pro se, “we liberally construe his filings, but we will not
act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
28 U.S.C. § 2244(d)’s one-year limitations period. We deny Mr. Valles’s COA request,

deny his in forma pauperis motion, and dismiss the petition.

                                        BACKGROUND

       In February 2009, a jury convicted Mr. Valles of a variety of controlled substance

distribution and possession violations. He received a combined sixty-nine-year term of

imprisonment. After pursuing state direct appeal and post-conviction relief, Mr. Valles

filed his application for habeas corpus relief in federal district court. The district court

found his application untimely under 28 U.S.C. § 2244(d) and held that Mr. Valles had

failed to demonstrate he was entitled to equitable tolling or excused from the limitations

period under the actual-innocence exception. The court also denied him a COA.

                                           ANALYSIS

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

conditions a state prisoner’s right to appeal a denial of habeas relief on the grant of a

COA, which is unavailable unless the applicant demonstrates a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. §§ 2253(c)(1)(A), (c)(2). Where, as here,

the district court denies a habeas petition on procedural grounds, we issue a COA 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 v. McDaniel, 529 U.S. 473, 478 (2000). Mr. Valles cannot make this

showing, and we therefore deny his request.



                                                   2
                     A. The Timing of Mr. Valles’s Habeas Petition

       AEDPA provides a one-year limitations period for habeas corpus petitions filed by

state prisoners. 28 U.S.C. § 2244(d)(1). Mr. Valles does not contest that he filed his

habeas petition outside the one-year AEDPA limitations period even after considering the

effects of statutory tolling. And he does not assert any right to equitable tolling. Instead,

Mr. Valles challenges the constitutionality of the one-year limitations period.

            B. Mr. Valles’s Challenges to the One-Year Limitations Period

       Mr. Valles argues that the one-year AEDPA limitations period is unconstitutional

because it: (1) “abridg[es] . . . the right of the people . . . to petition the Government for a

redress of grievances,” U.S. Const. amend. I; (2) violates the Suspension Clause, id. art. I,

§ 9, cl. 2; (3) amends the First Amendment without the requisite process, see id. art. V;

(4) violates the separation of powers doctrine because the temporary suspension of the

writ is reserved to the Executive Branch; (5) violates the Fourteenth Amendment

prohibition on arbitrary government action because the one-year limitations period begins

after state direct review concludes and expires before the limitations period for Colorado

post-conviction remedies; (6) violates the Equal Protection guarantee of the Fourteenth

Amendment because counseled petitioners are able to comply with the requirement while

pro se petitioners are penalized; and (7) violates the Supremacy Clause because state and

federal officials are required to obey the Constitution and the one-year limitations period

is in violation of the Constitution for the previous six reasons.

       As an initial matter, even given our liberal construction of pro se briefing,

Mr. Valles has not adequately presented many of his arguments in his opening brief;

                                                   3
accordingly, we may deem them waived. See Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised,

or are inadequately presented, in an appellant’s opening brief.”); Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]his court has repeatedly

insisted that pro se parties follow the same rules of procedure that govern other litigants.”

(quotation marks omitted)). In any event, Mr. Valles’s arguments fail. The Supreme

Court has regularly applied and interpreted AEDPA’s one-year limitations period without

questioning its constitutionality. See, e.g., McQuiggin v. Perkins, 569 U.S. 383 (2013);

Holland v. Florida, 560 U.S. 631 (2010); Lawrence v. Florida, 549 U.S. 327 (2007);

Pace v. DiGuglielmo, 544 U.S. 408 (2005); Duncan v. Walker, 533 U.S. 167 (2001).

       And we have addressed and rejected challenges to the constitutionality of the one-

year limitations period on many of the same grounds Mr. Valles now raises. See Miller v.

Marr, 141 F.3d 976, 977–78 (10th Cir. 1998) (absent grounds for equitable tolling or a

showing of actual innocence, one-year limitations period does not render habeas remedy

“inadequate and ineffective” and thus does not violate the Suspension Clause); see also

Ong Vue v. Allbaugh, 682 F. App’x 636, 638 (10th Cir. 2017) (one-year limitations

period is not an unconstitutional suspension of the writ); United States v. Sanchez, 568 F.

App’x 557, 559 (10th Cir. 2014) (one-year limitations period for § 2255 motions does not

violate the First Amendment’s right of access to the courts); Gutianez v. Parker, 237 F.

App’x 349, 352 (10th Cir. 2007) (one-year limitations period does not usurp state

prerogatives in having longer state post-conviction limitations periods).



                                                 4
       His other arguments similarly fail. For example, because the limitations period

does not run afoul of the First Amendment, see Sanchez, 568 F. App’x at 559,

Mr. Valles’s argument that AEDPA amends the First Amendment is incorrect. We have

also repeatedly enforced the one-year limitations period against pro se petitioners in the

absence of equitable tolling, even if counseled petitioners are better equipped to comply

with the time limit. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (pro se

status of petitioner and lack of legal knowledge do not merit equitable tolling); Gutianez,

237 F. App’x at 352–53. Because the one-year period is not a “suspension” of habeas

relief, see Ong Vue, 682 F. App’x at 638, Congress did not violate the separation of

powers doctrine with the passage of AEDPA.2 Finally, because Mr. Valles’s first six

arguments are without merit, his seventh argument that relies on the first six is also

meritless.

       Because Mr. Valles’s habeas petition was clearly time-barred and his contention

that the one-year limitations period is unconstitutional lacks merit, no reasonable jurist

could conclude that the district court erred in its procedural ruling. We thus deny

Mr. Valles’s request for a COA and do not reach the merits of the other issues he raises in

his application for a COA.

       2
         Mr. Valles’s argument also fails because Congress has the authority to suspend
the writ, contrary to his assertion. See Boumediene v. Bush, 553 U.S. 723, 744 (2008)
(habeas relief “ought not to be denied or delayed, except when, on account of public
danger, the Congress shall suspend the privilege of the writ of habeas corpus” (quoting 1
Debates in the Several State Conventions on the Adoption of the Federal Constitution
328 (J. Elliot 2d ed. 1876))); id. at 771 (“If the privilege of habeas corpus is to be
denied . . . , Congress must act in accordance with the requirements of the Suspension
Clause.”); Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality opinion) (“Only in the
rarest of circumstances has Congress seen fit to suspend the writ.”).
                                                 5
                       C. Mr. Valles’s In Forma Pauperis Motion

       “An appeal may not be taken in forma pauperis if the trial court certifies in

writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Although the trial court

so certified in this case, Mr. Valles “may nonetheless move this court for leave to proceed

on appeal in forma pauperis pursuant to the mechanism set forth in” Federal Rule of

Appellate Procedure 24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077,

1079 (10th Cir. 2007). As in the district court, “to succeed on his motion, an appellant

must show a financial inability to pay the required filing fees and the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). After careful

consideration of Mr. Valles’s application, we agree with the district court that he has not

shown the existence of such a reasoned, nonfrivolous argument. His motion for leave to

proceed in forma pauperis is accordingly denied.

                                       CONCLUSION

       We DENY Mr. Valles’s request for a COA, DENY his in forma pauperis motion,

and DISMISS this appeal.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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