                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 20, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                 Plaintiff-Appellee,                     No. 07-4053
          v.                                             (D. of Utah)
 HU GO RO M ERO -CRU Z,                       (D.C. Nos. 2:06-CV-929-DAK and
                                                     2:05-CR-62-DAK)
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **




      Hugo Romero-Cruz, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2255 habeas petition. For substantially the same reasons set forth by the

district court, we DENY COA and DISM ISS this appeal.




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      In April 2005, Romero-Cruz was charged with possession of and intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). He entered a

guilty plea on the basis of which the district court sentenced him to 120 months

imprisonment. Romero-Cruz’s plea agreement made clear that he faced a

minimum prison sentence of ten years and that he thereby waived his right to

appeal any lawful sentence. A final judgment was entered on June 23, 2005.

Romero-Cruz now attacks his sentence, claiming he was denied effective

assistance of counsel.

      Romero-Cruz filed his petition for habeas corpus with the district court on

November 2, 2006 but the district court found it was time-barred by the one-year

statute of limitations applicable to motions under § 2255.

      The limitation period shall run from the later of (1) the date on which
      the judgment of conviction becam e final; (2) the date on which the
      impediment to m aking a motion created by governmental action . . . is
      rem oved . . .; (3) the date on which the right asserted w as initially
      recognized by the Supreme Court . . .; or (4) the date on which the facts
      supporting the claim or claims presented could have been discovered
      through the exercise of due diligence.

28 U.S.C. § 2255. Points two through four are inapplicable to Romero-Cruz’s

petition. Because Romero-Cruz did not file a N otice of A ppeal, the district court

found his conviction became final, and the statute of limitations began to run,

when the possibility of direct review ended— i.e., when he failed to take a direct

appeal w ithin ten days of the entry of judgment. United States v. Burch, 202 F.3d

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1274, 1278 (10th Cir. 2000). Pursuant to this rule, Romero-Cruz’s conviction

became final on July 3, 2005. Thus, the district court concluded his petition for

habeas corpus, filed on November 2, 2006, was untimely. The court further found

that the facts of the case did not warrant equitable tolling of the statute of

limitations.

                               II. Standard of Review

      “An order dismissing a habeas application as time-barred by AEDPA is

subject to de novo review.” Serrano v. Williams, 383 F.3d 1181, 1184 (10th Cir.

2004) (quoting Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002)).

M oreover, we review a district court’s decision to deny equitable tolling for an

abuse of discretion. Fleming v. Evans, 481 F.3d 1249, 1254–55 (10th Cir. 2007)

(“Ultimately, therefore, we will vacate the District Court’s determination that

equitable tolling is inapplicable only if reasonable jurists could debate whether

the court’s refusal to toll the statute of limitations was an abuse of discretion.”).

                                     III. Analysis

      To obtain a COA, a petitioner must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); M iller-El v. Cockrell,

537 U.S. 322, 327 (2003). This standard is satisfied by demonstrating that

“reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to




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deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000).

         Romero-Cruz does not dispute that he failed to meet the statutory deadline

for filing his federal habeas petition. Rather, he argues that the statute ought to

be equitably tolled because he was denied effective assistance of counsel under

the Sixth Amendment. But we have made clear that equitable tolling will only

apply in “rare and exceptional circumstances.” See, e.g., Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000). A petitioner has the burden of establishing that

equitable tolling should apply. M iller v. M arr, 141 F.3d 976, 978 (10th Cir.

1998).

         W e recently held that “sufficiently egregious misconduct on the part of a

habeas petitioner’s counsel may justify equitable tolling of the AED PA

limitations period.” Fleming, 481 F.3d at 1256. In Fleming, petitioner hired

counsel to represent him in state post-conviction proceedings. Petitioner

subsequently made a number of inquiries as to the status of his petition and was

told each time that it was being prepared and would soon be filed. But the

petition was never filed. Petitioner, aware that the statute of limitations deadline

was approaching, ultimately took matters into his own hands and drafted a

petition with the help of prison clerk. He submitted it to counsel for review and

filing in state court. However, counsel did not file until after the AED PA




                                           -4-
deadline had passed. On these facts, we concluded Petitioner was at least entitled

to an evidentiary hearing to determine whether equitable tolling should apply.

      In contrast, Romero-Cruz has not convinced us that his counsel committed

any misconduct at all, much less the kind of egregious misconduct which would

make Fleming applicable. On appeal, Romero-Cruz claims his trial counsel was

ineffective for (1) misinforming Romero-Cruz regarding the likely consequences

of his plea agreement such that the guilty plea was not knowing and voluntary,

and (2) failing to file a notice of appeal in his case despite Romero-Cruz’s

instruction to do so. W e address each claim in turn.

(1) Romero-Cruz’s Guilty Plea W as Knowing and Voluntary

      R omero-C ruz w as convicted pursuant to a guilty plea. Under our case law ,

a plea agreement must be knowing and voluntary. See, e.g., United States v.

Hahn, 359 F.3d 1315, 1320–24 (10th Cir. 2004) (en banc) (looking to (1) the

language of the plea agreement, and (2) an adequate Rule 11 colloquy). Romero-

Cruz claims his plea was not knowing and voluntary because he was not advised

that he faced a mandatory minimum sentence of ten years. H e argues that his

counsel’s misrepresentations regarding the likely consequence of his plea

constitute sufficiently egregious conduct w hich should justify equitable tolling.

      But the record belies this contention. Before his plea hearing, Romero-

Cruz signed a statement which provided in part:




                                         -5-
      I hereby acknowledge and certify that I have been advised of and that
      I understand the following facts and rights, and that I have had the
      assistance of counsel in reviewing, explaining and completing this form
      . . . I know that the maximum possible penalties provided by law for
      the offenses to which I am pleading guilty are: (a) Count 1 of the
      Indictment, Possession of M ethamphetamine with intent to distribute,
      a violation of 21 U .S.C . § 841(a)(1); A TERM OF IM PRISONMENT
      OF N OT LESS THAT TEN YEA RS AN D N OT M OR E THA N LIFE.

Statement of Defendant in Advance of Guilty Plea, 4/4/05, at 1 (emphasis in

original). The district court, moreover, found at the change of plea hearing and

after a Rule 11 colloquy “that there is a factual basis for the plea and accepts dft’s

plea as being knowing and voluntarily entered.” M inutes of the United States

District Court for the District of Utah, Judge Dale A. Kimball, 4/4/05, at 1.

      It is hard to conceive of a clearer exposition of the likely consequences of

entering the guilty plea than that found in this case. Irrespective of counsel’s

advice, the statement shows that Romero-Cruz was on notice that he faced a

minimum prison term of ten years. Furthermore, these circumstances— even when

judged in a light favorable to Petitioner— offer no justification for why Romero-

Cruz’s habeas petition was untimely.

      W e cannot say that the district court’s rejection of equitable tolling based

on these facts was debatable or w rong.

(2) Counsel’s W as Not Ineffective for Failing to File Notice of Appeal

      Next, Romero-Cruz argues that the statute of limitations ought to be

equitably tolled because his counsel failed to file a Notice of Appeal in his case.



                                          -6-
Similar to the facts in Fleming, Romero-Cruz maintains that he asked counsel to

file a notice of appeal with the court but that these documents were never filed.

But there is a crucial distinction: whereas the petitioner in Fleming sought to file

a habeas petition which he was entitled to file, Romero-Cruz sought to file an

appeal in spite of the explicit waiver of appeal rights contained in his Plea

Statement. The Statement provided:

      I know that there is no appellate review of any lawful sentence imposed
      under a plea of guilty. I also know that . . . I may appeal the sentence
      imposed upon me in this case only if the sentence is imposed in
      violation of law or, in light of the factors listed in 18 U.S.C. § 3553(a),
      the sentence is unreasonable.

Statement of Defendant in Advance of Guilty Plea, 4/4/05, at 3. In light of this

appellate waiver, Romero-Cruz’s counsel cannot be faulted for failing to file an

appeal. In any event, any failing on counsel’s part can hardly be equated to the

egregious misconduct evidenced in Fleming. 1

      In sum, Romero-Cruz has not set forth any “rare and exceptional”

circumstances which would justify the application of equitable tolling.




      1
        Even if we were to reach the sentencing issues, Romero-Cruz has not
demonstrated any legal error, or that his sentence was unreasonable. He was
sentenced at the very low end of the mandatory minimum.

                                          -7-
                                III. Conclusion

     For the reasons set forth above, we REJECT Romero-Cruz’s petition for

COA and DISM ISS this appeal.

                                            Entered for the Court,

                                            Timothy M . Tymkovich
                                            Circuit Judge




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