                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSNovember 1, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                         No. 13-8030
                                                        (D. Wyoming)
       v.
                                             (D.C. Nos. 1:12-CV-00267-ABJ and
                                                   1:08-CR-00170-WFD-1)
JULIAN ESPINOZA,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.




      This matter is before the court on Julian Espinoza’s pro se request for a

certificate of appealability (“COA”). Espinoza seeks a COA so he can appeal the

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2255 motion.

See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a

final order denying a § 2255 motion unless the movant first obtains a COA); id.

§ 2255(f)(1) (setting out a one-year statute of limitations on § 2255 motions

running from the date on which the conviction became final). Because Espinoza

has not “made a substantial showing of the denial of a constitutional right,” id.

§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
      Following a jury trial in federal district court, Espinoza was convicted of

receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1).

This court affirmed Espinoza’s conviction on direct appeal. United States v.

Espinoza, 403 F. App’x 3158 (10th Cir. 2010). Espinoza’s conviction became

final when the Supreme Court denied certiorari on March 21, 2011. See Espinoza

v. United States, 131 S. Ct. 1710 (2011); see also United States v. Gabaldon, 522

F.3d 1121, 1123 (10th Cir. 2008) (noting movant’s convictions became final upon

the Supreme Court’s denial of certiorari). Espinoza filed the instant § 2255

motion on November 2, 2012, more than seven months beyond the one-year

limitations period set out in § 2255(f)(1).

      Before the district court, Espinoza recognized his § 2255 motion was

untimely, but asserted as follows: (1) the application of § 2255(f)(1)’s limitations

period to him amounted to a violation of the Suspension Clause; and (2) he was

entitled to equitable tolling because of diminished mental capacity. In a

comprehensive order, the district court rejected these contentions and dismissed

Espinoza’s motion. The district court rejected Espinoza’s Suspension Clause

argument because Espinoza failed to articulate how the limitations period set out

in § 2255(f)(1) rendered the habeas remedy inadequate or ineffective. Miller v.

Marr, 141 F.3d 976, 977 (10th Cir. 1998). The district court rejected Espinoza’s

request for equitable tolling because Espinoza failed to demonstrate he was

diligent in pursuing his post-conviction remedies. Furthermore, even assuming

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Espinoza was diligent, he failed to demonstrate any mental illness he might have

significantly impaired his ability to file a timely § 2255 motion. In that regard,

the district court noted Espinoza’s correspondence with his attorney during the

relevant time frame demonstrated his ability to pursue his post-conviction

remedies.

      The granting of a COA is a jurisdictional prerequisite to Espinoza’s appeal

from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Espinoza must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “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.” Id. (quotations omitted). When a district

court dismisses a § 2255 motion on procedural grounds, a movant is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether

he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 474, 484-85

(2000). In evaluating whether Espinoza has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

Although Espinoza need not demonstrate his appeal will succeed to be entitled to

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a COA, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. As a further overlay on this standard, we

review for abuse of discretion the district court’s decision that Espinoza is not

entitled to have the limitations period in § 2255(f) equitably tolled. See Burger v.

Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

      Having undertaken a review of Espinoza’s appellate filings, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Espinoza is not entitled to

a COA. The district court’s resolution of Espinoza’s § 2255 motion is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. In particular, the district court did not

abuse its discretion in determining Espinoza failed to demonstrate the type of

extraordinary circumstances that would justify equitably tolling the limitations

period set out in § 2255. Likewise, one cannot reasonably debate the correctness

of the district court’s conclusion that the application of § 2255(f)(1) to Espinoza’s

motion does not violate the Suspension Clause. Accordingly, this court DENIES

Espinoza’s request for a COA and DISMISSES this appeal. Espinoza’s request

to proceed on appeal in forma pauperis is GRANTED.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge

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