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

                              FOR THE TENTH CIRCUIT                               June 25, 2020
                          _________________________________
                                                                              Christopher M. Wolpert
                                                                                  Clerk of Court
    RUBEN ARAGON,

         Petitioner - Appellant,

    v.                                                          No. 20-1188
                                                    (D.C. No. 1:19-CV-01811-LTB-GPG)
    DEAN WILLIAMS, Executive Director,                           (D. Colo.)
    C.D.O.C.; THE ATTORNEY GENERAL
    OF THE STATE OF COLORADO,

         Respondents - Appellees.
                        _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________

         Petitioner, a Colorado state prisoner proceeding pro se, filed a habeas petition

pursuant to 28 U.S.C. § 2254 in the District of Colorado asserting a violation of his

Fourteenth Amendment due process rights based on an alleged breach of his plea

agreement. The district court dismissed Petitioner’s application as untimely and denied

him a certificate of appealability (“COA”). Now, Petitioner seeks a COA before this court.

         If the district court denies a habeas petition on procedural grounds without reaching

the petitioner’s underlying constitutional claim, a COA will issue when the petitioner



*
  This order is not binding precedent except under the doctrines of law of the case, res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.
shows “jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right” and “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). The petitioner must satisfy both parts of this threshold inquiry before we will

hear the merits of the appeal. Gibson v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).

       For the reasons explained below, no reasonable jurist could conclude the district

court’s procedural ruling was incorrect. Petitioner’s claims are indisputably time-barred

under 28 U.S.C. § 2244(d), and he is not eligible for equitable tolling. Therefore,

exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Petitioner’s

application for a COA and dismiss this appeal.

                                           ***

       To understand why Petitioner’s claims are time-barred, we must briefly address the

factual basis for his claims. In 1997, Petitioner pleaded guilty to one count of distribution

of a controlled substance in the District of Colorado. The district court sentenced him to

120 months’ imprisonment, to run consecutively to the Kentucky state sentence Petitioner

was currently serving. The district court was silent as to whether the federal sentence

would run consecutively or concurrently to any future sentences Petitioner might receive.

       Thereafter, in 1998, Petitioner pleaded guilty to one count of second-degree murder

and one count of distribution of a controlled substance in Colorado state court. The

judgment provided that Petitioner would serve 48 years’ imprisonment for second-degree

murder and 22 years’ imprisonment for distribution of a controlled substance. The



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judgment “ordered or recommended” that the sentences run consecutively to each other

and concurrently with Petitioner’s Kentucky state sentence and federal sentence.

       On June 20, 2019—more than ten years after his Colorado state conviction became

final—Petitioner filed this action. Petitioner claims he recently learned the federal court

determines whether its sentences run concurrently or consecutively to a state sentence.

And “if a federal sentence is silent as to whether it is imposed concurrently or consecutively

. . . the federal sentence automatically defaults to being consecutively imposed.” Because

Petitioner’s federal sentence is silent as to whether it would run concurrently or

consecutively to any future sentence, Petitioner asserts the federal sentence will be served

consecutively to his Colorado state sentence. This, he argues, violates his Colorado state

court plea agreement which “promised” him that his state sentence would run concurrently

to any federal sentence. The district court dismissed the petition as time-barred.

                                            ***

       The Antiterrorism and Effective Death Penalty Act of 1996 prescribes a one-year

statute of limitations for habeas petitions. See 28 U.S.C. § 2244(d)(1). Generally, the one-

year period will run from the date on which the judgment becomes final. See Nguyen v.

Golder, 133 F. App’x 521, 523 (10th Cir. 2005) (unpublished); 28 U.S.C. § 2244(d)(1)(A).

Petitioner acknowledges more than one year has passed since his conviction became final

in 1998. Petitioner nonetheless argues he timely filed his habeas petition because he filed

the petition within one year of the removal of a state-created impediment.

       Under 28 U.S.C. § 2244(d)(1)(B), when the state creates an impediment that

prevents the petitioner from filing on time, the one-year limitation does not begin to run

                                              3
until the impediment is removed. Id. In this case, Petitioner contends the Government

“hoodwinked” him and promised him something the state could not guarantee—that his

Colorado state sentence would run concurrently to his federal sentence. Petitioner argues

this alleged fraud constitutes a state-created impediment to timely filing, and that this

impediment was not removed until he learned of the fraud in 2017. Petitioner’s claim is

without merit.

       A review of our case law shows 28 U.S.C. § 2244(d)(1)(B) typically applies when

the state thwarts a prisoner’s access to the courts, for example, by denying an inmate access

to his legal materials or a law library. See Garcia v. Hatch, 343 F. App’x 316, 318 (10th

Cir. 2009) (unpublished) (collecting cases).       We have further held the state-created

impediment must have actually prevented the inmate from filing his application. Id. at 319.

In this case, assuming arguendo the state fraudulently induced Petitioner’s plea, Petitioner

makes no claim that he was unable to discover the alleged fraud because, for instance, he

did not have access to his legal materials or a law library. No state action actively prevented

Petitioner from learning his state sentence would run consecutively to his federal sentence.

In fact, the state court judgment that Petitioner attached to his pleadings merely

“recommended” that his state sentence run concurrently with his federal sentence. The fact

that Petitioner did not inquire into the nature of his sentences or conduct legal research

until 2017 is not attributable to the state. Accordingly, Petitioner’s habeas application is

not timely filed under 28 U.S.C. § 2244(d)(1)(B).

       Petitioner alternatively suggests his petition is timely under 28 U.S.C.

§.2244(d)(1)(D). Under this subsection, a habeas petition may be brought within one year

                                              4
of “the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.” 28 U.S.C. §.2244(d)(1)(D). The

test under § 2244(d)(1)(D) is not when the petitioner obtained actual knowledge of the

basis for his claims, but rather the date on which the factual predicate of the claim could

have been discovered through the exercise of due diligence. Id.

       Here, the factual predicate underlying Petitioner’s claim—that his state and federal

sentences are consecutive—was discoverable on the day Petitioner’s state court conviction

became final. At that time, Petitioner had already been sentenced in federal court. Thus,

he could have known then that his federal sentence was silent as to whether it would run

consecutively or concurrently to future state sentences. He also could have known that his

state court judgment merely “recommended” his state sentence run concurrent to his

federal sentence. While Petitioner only recently learned of the legal implications of his

federal sentence, the factual predicate existed over ten years ago. See Perez v. Dowling,

634 F. App’x 639, 644 (10th Cir. 2015) (explaining § 2244(d)(1)(D) concerns the factual,

not legal, basis for an inmate’s claims). Accordingly, Petitioner’s claims are time-barred

under 28 U.S.C. § 2244(d)(1)(D).

       Finally, although we conclude Petitioner’s habeas application is untimely under 28

U.S.C. §.2244(d)(1), we must decide whether Petitioner is entitled to equitable tolling.

“Generally, a litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011)

(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As a result, equitable tolling is

                                              5
only available in rare and exceptional circumstances, and “a garden variety claim of

excusable neglect is not enough.” Id. (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S.

89, 96 (1990)).

       In this case, Petitioner does not present any extraordinary circumstance that stood

in his way of discovering his state and federal sentences would run consecutively. We

have held that “ignorance of the law, even for an incarcerated pro se petitioner, generally

does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)

(citing Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)). Petitioner’s only claim for

equitable tolling is that he did not realize his federal sentence would run consecutively to

his state sentence until he spoke with his case manager in 2017. Although Petitioner’s

belated realization might amount to excusable neglect, it is insufficient to support equitable

tolling. Thus, Petitioner is not entitled to equitable tolling.

                                             ***

       For all these reasons, no reasonable jurist could conclude the district court’s

procedural ruling was incorrect. Petitioner’s claims are time-barred, and he is not eligible

for equitable tolling. Therefore, we deny Petitioner’s application for a COA and dismiss

this appeal. Petitioner’s motion to proceed IFP is granted.


                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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