                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS September 12, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                         No. 08-3200
                                            (D.C. Nos. 2:05-CR-20077-JWL-3 and
 JUAN QUINTANA-NAVARETTE,
                                                   2:07-CV-02580-JWL)
                                                          (D. Kan.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


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


      Juan Carlos Quintana-Navarette, a federal prisoner proceeding pro se, seeks

to challenge his imprisonment in a 28 U.S.C. § 2255 habeas petition. The district

court dismissed the petition as time-barred. Mr. Quintana-Navarette did not

directly appeal this decision but instead filed two consecutive motions with the

district court asking it to reconsider or amend its initial decision. Both motions

were construed as Fed. R. Civ. P. Rule 60(b) motions and denied. He now seeks

before us a certificate of appealability (“COA”) to appeal the district court’s

denial of his Rule 60(b) motions.


      *
        This order is not binding precedent except under the doctrines of law of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.
                                        ***

      On January 5, 2006, Mr. Quintana-Navarette pleaded guilty to one count of

conspiring to distribute or possess with intent to distribute over 1000 kilograms of

marijuana in violation of 21 U.S.C. § 846. As part of his plea agreement, Mr.

Quintana-Navarette waived the right to appeal or collaterally attack any sentence

within the applicable sentencing guideline range. After the court sentenced him

to a term of imprisonment of 120 months, a term that represented the low end of

the applicable guideline range, Mr. Quintana-Navarette appealed. We dismissed

the appeal on the basis of his waiver. See United States v. Quintana-Navarette,

2006 WL 2411463 (10th Cir. Aug. 22, 2006).

      In December, 2007, petitioner filed a Section 2255 petition, alleging among

other things that he received ineffective assistance of counsel. Petitioner declared

under penalty of perjury that he placed the petition in the prison mailing system

on November 23, 2007. The district court dismissed the petition. The court

explained that the one-year statute of limitations under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) started running the day after

which Mr. Quintana-Navarette could no longer seek Supreme Court review –

November 21, 2006. Because he failed to file within one year of that date and

because the court found no basis for equitable tolling, the petition was time-

barred.




                                        -2-
      Mr. Quintana-Navarette did not appeal the district court’s decision.

Instead, he filed a motion to alter or amend the judgment – a motion that is

treated as a Rule 60(b) motion in this case because it was filed more than ten days

after the judgment sought to be altered. See Price v. Philpot, 420 F.3d 1158,

1167 n.9 (10th Cir. 2005). In that motion, Mr. Quintana-Navarette argued that the

district court had calculated the limitations period incorrectly and that his

November 23, 2007, filing met the one-year statute of limitations. The district

court denied that motion on June 5, 2008, explaining that Mr. Quintana-

Navarette’s calculations were incorrect. Nearly two weeks later, Mr. Quintana-

Navarette filed another Rule 60(b) motion. In this motion, he conceded that his

§ 2255 petition was filed after the limitations period had lapsed, but argued that

the district court should reopen the judgment because he was entitled to equitable

tolling. The district court summarily denied this second motion in a docket entry

on June 21, 2008.

      Mr. Quintana-Navarette now seeks a COA from this court to appeal the

district court’s denial of his motions to alter the judgment. 1 It is safe to assume


      1
          Mr. Quintana-Navarette rightly does not seek appellate review of the
district court’s initial dismissal of his Section 2255 petition. Such review is not
available to him because he did not file a notice of appeal within 60 days of the
district court judgment as required by Fed. R. App. P. 4(a). See United States v.
Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). His failure to timely appeal the denial
of the Section 2255 petition does not, however, preclude him from seeking review
of the denial of his Rule 60(b) motion as he filed a notice of appeal within 60
days of the district court’s dismissal of that motion.

                                          -3-
that Mr. Quintana-Navarette asks us to review the district court’s denial of his

second Rule 60(b) motion as his principal argument on appeal is based on

equitable tolling – a ground he did not present in his first Rule 60(b) motion. 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). Under this standard, a habeas

plaintiff must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) 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) (quotations

omitted). Moreover, where, as in this case, the district court dismissed a habeas

petition on procedural grounds, a COA should only be issued if the prisoner

shows that reasonable jurists could debate whether the district court was correct

in its procedural ruling. Id.

      Layered on top of the Slack inquiry are other standards of review that stand

as significant hurdles to Mr. Quintana-Navarette’s obtaining a COA. See Fleming

v. Evans, 481 F.3d 1249, 1254-55 (10th Cir. 2007) (applying Slack test in

conjunction with appropriate standard of review). First, denials of Rule 60(b)

motions are reviewed only for abuse of discretion. Allender v. Raytheon Aircraft

Co., 439 F.3d 1236, 1242 (10th Cir. 2006). Moreover, Mr. Quintana-Navarette’s

basis for why the district court should have reconsidered its earlier dismissal is

his contention that the statute of limitations should have been equitably tolled,

                                         -4-
and this court has held that AEDPA is only subject to equitable tolling in “rare

and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000). Accordingly, we can only grant COA in this case if we find that it is

debatable whether the district court abused its discretion by denying a motion to

reopen the judgment on the basis of a legal claim that is only available in “rare

and exceptional circumstances.” This is a difficult hurdle to overcome, and we

find that Mr. Quintana-Navarette cannot do so.

      Mr. Quintana-Navarette makes two related arguments why the AEDPA

period of limitation should have been equitably tolled in his case. First, he

submits that he was without access to his legal materials from June 30, 2005, until

October 23, 2007, and, as a result, he did not have enough time with his legal file

to prepare his petition. Second, he argues that he never received a copy of the

Tenth Circuit opinion that listed the date upon which judgment was entered and,

consequently, the date upon which statute of limitations calculations would be

based. Without that opinion, Mr. Quintana-Navarette claims that he had only a

docket report which suggested this court resolved his direct appeal on August 24,

2006 rather than the actual date of August 22, 2006. He argues that these are

“extraordinary circumstances” deserving of equitable tolling.

      We are constrained to disagree. The law in this circuit is clear that “a

claim of insufficient access to relevant law” alone is not sufficient to support

equitable tolling. See Gibson, 232 F.3d at 808. Rather, the petitioner must

                                         -5-
provide specificity regarding the lack of access and the “steps he took to

diligently pursue his federal claims.” See Miller v. Marr, 141 F.3d 976, 978 (10th

Cir. 1998). Mr. Quintana-Navarette has failed to provide any specifics as to why

he was unable to access his legal files or the Tenth Circuit opinion. Neither has

he outlined any steps he took to attempt to receive those materials. Because he

has failed to provide that information, under our governing precedents we are

unable to afford to him the relief he seeks.

                                         ***

      Mr. Quintana-Navarette’s request for a COA is denied and this appeal is

dismissed.



                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




                                         -6-
