                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 20, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 LARRY JARAMILLO,

                 Petitioner-Appellant,                   No. 09-1075
          v.                                         District of Colorado
 WARDEN KEVIN MILYARD and                     (D.C. No. 1:08-CV-02166-ZLW)
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Larry Jaramillo, 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. Jaramillo 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).

      In March 2004, Mr. Jaramillo pled guilty to one count of sexual

exploitation of a child. The court later sentenced him to twenty years in prison,


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
citing his “significant” criminal history. R. 34. His habeas petition before us

contends, inter alia, that his sentence violated his Sixth and Fourteenth

Amendment rights, that his sentence was illegal, and that his plea was not

voluntarily, knowingly, or intelligently made. Aplt. Br. 6, 11, 15.

      Federal law imposes a one-year limitation on the right of state prisoners to

file habeas actions under 28 U.S.C. § 2244. See § 2244(d)(1). The district court

ruled that Mr. Jaramillo’s petition was untimely under 28 U.S.C. § 2244(d)(1) and

noted that Mr. Jaramillo did not dispute that “there was more than one year after

his conviction became final and before this action was filed during which no state

court postconviction motion was pending.” Dist. Ct. Ord. 4. The court also

concluded that Mr. Jaramillo was not eligible for equitable tolling.

      On appeal, Mr. Jaramillo does not dispute the substance of the district

court’s timeliness ruling, but instead argues that the statute of limitations for

asserting a claim for collateral review is unconstitutional. The precise grounds

for this contention are not clear, but Mr. Jaramillo asserts that “[i]t is impossible

for us to believe that the framers of the Constitution would have ever allowed for

a constitution [sic] violation to go unchallenged because of a time limitation.”

Aplt. Br. 4.

      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

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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).

      Mr. Jaramillo’s argument does not satisfy this standard. He cites no

historical evidence, and we are aware of none, that the framers of the Constitution

believed there could be no time limitations for raising constitutional claims or

defenses. Moreover, he cites no precedent, and we are aware of none, in support

of his position.

      Federal law requires that a prisoner seeking collateral federal review of a

state court conviction diligently pursue any claims he brings. Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000). This requirement serves the values both of

finality and of comity. The fact that Mr. Jaramillo believes that his sentence is

unconstitutional does not remove this requirement. See Smith v. Workman, No.

05-CV-721-HDC-SAJ, 2006 WL 2251699, at *3 (N.D. Okla. Aug. 4, 2006)

(rejecting the claim that there is “no time limitation” for alleging a Constitutional

violation as “erroneous”). Mr. Jaramillo does not claim he is innocent, only that

his sentence is, for various reasons, unjust. And Mr. Jaramillo does not bring to




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bear any facts which show that his failure to timely file his claim was due to

anything more than excusable neglect.

      No reasonable jurist, therefore, could disagree with the district court’s

conclusion that Mr. Jaramillo “fails to allege any facts that might justify equitable

tolling of the one-year limitation period.” Dist. Ct. Ord. 5.

                                  CONCLUSION

      Accordingly, we DENY Mr. Jaramillo’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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