                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 18, 2010
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 GISELLE GUTIERREZ-RUIZ,

               Petitioner - Appellant,

        v.                                                   No. 09-1565
                                                   (D. Ct. No. 1:09-CV-02026-ZLW
 TRAVIS TRANI, Warden; THE                                     (D. Colo)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

               Respondents - Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Giselle Gutierrez-Ruiz, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal from the dismissal of his habeas petition

brought pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as

untimely. We take jurisdiction under 28 U.S.C. § 1291, DENY Mr. Gutierrez-Ruiz’s

request for a COA, and DISMISS this appeal.
                                   I. BACKGROUND

       On July 10, 1998, a jury found Mr. Gutierrez-Ruiz guilty of first-degree murder

and first-degree assault. He was sentenced to life without parole for the murder

conviction and to ten years and one day for the assault conviction. The Colorado Court of

Appeals affirmed his convictions and sentences on direct appeal on February 22, 2001,

and the Colorado Supreme Court denied review on August 21, 2001. He did not file a

petition for certiorari with the United States Supreme Court. In 2006, Mr. Gutierrez-Ruiz

filed the first of several state post-conviction motions. After they were denied, he filed

this § 2254 petition in federal district court on August 19, 2009.

       The district court dismissed the petition as barred by the one-year limitations

period governing § 2254 claims. See 28 U.S.C. § 2244(d)(1). The court further

concluded that none of Mr. Gutierrez-Ruiz’s state post-conviction motions tolled the

limitations period and that he had not demonstrated that he was entitled to equitable

tolling. Finally, the district court denied his application for a COA. Mr. Gutierrez-Ruiz

now seeks a COA from this court.

                                    II. DISCUSSION

       A state petitioner may not appeal from the denial of a § 2254 petition without first

obtaining a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant

has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

When, as is the case here, the district court denies the petition on procedural grounds, we

will issue a COA only if the petitioner demonstrates “that jurists of reason would find it

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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, 484 (2000). We conclude that

the district court was clearly correct in its procedural ruling that Mr. Gutierrez-Ruiz’s

petition is untimely.

       A one-year statute of limitations governs § 2254 petitions. 28 U.S.C. § 2244(d)(1).

In general, the period begins to run on the date that the petitioner’s conviction and

sentence “bec[omes] final by the conclusion of direct review or the expiration of the time

for seeking such review.” Id. § 2244(d)(1)(A). Here, the Colorado Court of Appeals

affirmed Mr. Gutierrez-Ruiz’s convictions and sentences in February 2001, and the

Colorado Supreme Court denied review on August 21, 2001. He had then had ninety

days (i.e., until approximately November 19, 2001) to petition the United States Supreme

Court for review, after which his convictions and sentences became final for purposes of

§ 2244(d)(1)(A). See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, Mr.

Gutierrez-Ruiz’s § 2254 petition, which was not filed until 2009, was clearly filed beyond

§ 2244(d)(1)’s one-year limitations period.

       In support of his argument that his petition is timely, Mr. Gutierrez-Ruiz contends

that the only available law books within the Colorado Department of Corrections are

written in English but that he does not speak English and has not been given an

interpreter. He explains that although the state of Colorado provided him with an

interpreter throughout his trial and that his trial and appellate counsel communicated with

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him in Spanish, his counsel never informed him of the § 2254 statute of limitations and

the state has not made further efforts to assist him during federal habeas proceedings.

Finally, he states that under Colo. Rev. Stat. § 17-32-105(3)(b)(I), inmates are required to

attend a course called English as a Second Language, but inmates who are serving life

sentences are excluded from taking the course.

       Under 28 U.S.C. § 2244(d)(1)(B), the one-year statute of limitations does not

begin to run, notwithstanding the finality of the petitioner’s conviction, when the state has

imposed an impediment to filing the § 2254 petition in violation of the constitution or

federal law. We disagree with Mr. Gutierrez-Ruiz that the state has imposed such an

impediment in this case because, as we have held, “the Colorado Department of

Corrections is under no duty to provide access to legal materials in a prisoner’s preferred

language.” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008). Moreover, we do not

read § 17-32-105(3)(b)(I) as prohibiting an inmate from taking English-language classes;

it simply excuses otherwise mandatory attendance for those inmates who are serving life

sentences and who would rather not participate in such classes. Finally, to the extent that

Mr. Gutierrez-Ruiz suggests that the state denied him counsel to inform him of the § 2254

statute of limitations and/or assist him in preparing a § 2254 petition, we disagree because

there is no constitutional or federal right to counsel in post-conviction proceedings. See

id. at 926 n.2.

       Mr. Gutierrez-Ruiz also argues that his language difficulties provide a basis for

equitably tolling the one-year time period. Equitable tolling may be proper in “rare and

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exceptional circumstances.” See Coppage v. McKune, 534 F.3d 1279, 1280 (10th Cir.

2008) (quotations omitted). We have held, however, that a petitioner’s lack of

proficiency in the English language, in conjunction with a lack of access to legal

materials in his first language and a translator, are not extraordinary circumstances that

warrant equitable tolling. See Yang, 525 F.3d at 927, 930.

                                   III. CONCLUSION

       Mr. Gutierrez-Ruiz’s request for a COA is DENIED and this appeal is

DISMISSED. We GRANT his request to proceed in forma pauperis on appeal.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




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