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

                               FOR THE TENTH CIRCUIT                     December 15, 2015
                           _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
PANFILO PEREZ,

         Petitioner - Appellant,

v.                                                        No. 15-6111
                                                   (D.C. No. 5:14-CV-01271-R)
JANET DOWLING, Warden, JCCC,                              (W.D. Okla.)

         Respondent - Appellee.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY*
                      _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

     Panfilo Perez, an Oklahoma state prisoner, seeks a Certificate of Appealability

(COA)1 to enable him to appeal the district court’s order dismissing his petition for a

writ of habeas corpus as time barred under the Anti-Terrorism and Effective Death

Penalty Act (AEDPA), 28 U.S.C. § 2244(d). The district court also denied Perez’s

motion for permission to proceed in forma pauperis.

     We may issue a COA only if the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, a petitioner must


     *
      This order is not binding precedent, except under the doctrines of law of the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.
     1
       A COA is a jurisdictional prerequisite to this court’s review of a § 2254
petition. 28 U.S.C. § 2253(c)(1)(A).
show that reasonable jurists could differ as to whether his petition should have been

resolved differently. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Despite

viewing his pro se pleadings generously, see United States v. Pinson, 584 F.3d 972,

975 (10th Cir. 2009), we conclude that Perez has not satisfied his burden. Reasonable

jurists could not debate the correctness of the district court’s dismissal. Therefore,

exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we DENY his request

for a COA and his motion to proceed in forma pauperis and DISMISS this appeal.

                                  BACKGROUND

    On November 4, 2002, a jury convicted Perez on drug-trafficking charges. For

this crime, the district court later sentenced him to sixty years of imprisonment and a

$100,000 fine. On September 18, 2003, the Oklahoma Court of Criminal Appeals

(OCCA) affirmed Perez’s conviction on appeal. He did not file a petition for

certiorari in the United States Supreme Court.

    The following timeline outlines the proceedings that followed:

    August 18, 2004: Perez filed his first request for post-conviction relief, which
     was denied on September 20, 2005, and he appealed to the OCCA.
    March 15, 2006: The OCCA reversed and remanded to the district court for
     further post-conviction proceedings.
    August 14, 2006: Following evidentiary hearings, the district court denied
     relief.
    September 13, 2006: Perez improperly filed an appeal of the district court’s
     post-conviction ruling from August 14, 2006, as a second application for post-
     conviction relief.
    July 19, 2007: Perez filed an application to appeal out of time the district
     court’s August 14, 2006 ruling.
    March 3, 2008: The district court recommended granting Perez’s appeal out of
     time, noting that he improperly attempted to appeal on September 13, 2006.


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    March 27, 2008: The OCCA affirmed the district court’s August 14, 2006
     ruling denying relief.
    April 14, 2009: Perez moved to modify his sentence, which the district court
     denied on April 23, 2009.
    May 29, 2013: Perez filed a second application for post-conviction relief,
     which the court denied on June 7, 2013.
    July 16, 2013: Perez filed an appeal to the OCCA, which the OCCA denied on
     July 31, 2013, because Perez did not appeal within 30 days.
    August 2, 2013: Perez filed an application for appeal out of time in the district
     court, which the district court recommended on August 13, 2013.
    October 21, 2013: The OCCA granted Perez’s request for post-conviction
     appeal out of time.
    March 21, 2014: The OCCA affirmed the district court’s June 7, 2013 order
     denying relief.

   This takes us to Perez’s federal habeas petition now before us. On November 13,

2014, Perez filed his request for habeas relief. In response to the habeas petition, the

government filed a motion to dismiss Perez’s petition as time barred, along with a

supporting brief. Perez then filed his objections to the motion, as well as a motion for

a “habeas corpus hearing, discovery and the appointment of counsel.” R. vol. I at

198. The district court referred the matter to a magistrate judge for initial proceedings

under 28 U.S.C. § 636(b)(1)(B), and the magistrate, in a lengthy and thorough Report

and Recommendation, recommended that Perez’s petition be denied. The district

court adopted the recommendation and dismissed Perez’s petition as time barred.

After Perez filed two motions for reconsideration, both of which the district court

denied, this appeal followed.

                                    DISCUSSION

    A petitioner must obtain a COA before he can appeal the denial of any final order

in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1); Steffy v. Sirmons, 273 F.

                                           3
App’x 748, 749–50 (10th Cir. 2008) (unpublished) (“The [AEDPA] conditions a

petitioner’s right to appeal a denial of habeas relief under § 2241 upon a grant of a

COA.”). To receive a COA, a petitioner must demonstrate that “jurists of reason

would find it 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,

478 (2000). “We review de novo the district court’s dismissal of [Perez’s] habeas

petition as time-barred under § 2244(d).” Robinson v. Golder, 443 F.3d 718, 720

(10th Cir. 2006). However, “we review the district court’s decision on equitable

tolling of the limitation period for an abuse of discretion.” Burger v. Scott, 317 F.3d

1133, 1138 (10th Cir. 2003).

    AEDPA subjects a habeas action to a one-year period of limitation. See 28 U.S.C.

§ 2244(d). The period runs from the latest of four possible dates. Id. § 2244(d)(1).

Reviewing his pro se petition generously, Perez’s case may implicate three of the four

dates: the conclusion of his direct review, a constitutional right newly recognized by

the Supreme Court, and the discovery of the factual predicate of the habeas claim.

The limitation period “may be tolled, however, during the pendency of any ‘properly

filed application for State post-conviction or other collateral review.’” Robinson, 443

F.3d at 720 (quoting 28 U.S.C. § 2244(d)(2)). We address each possibility, as well as

tolling, in turn.




                                          4
    A. Conclusion of Direct Review

    Section 2244(d)(1)(A) of the AEDPA provided Perez with one year from the date

when his judgment became final to file his petition for writ of habeas corpus:

      A 1-year period of limitation shall apply to an application for a writ of
      habeas corpus by a person in custody pursuant to the judgment of a
      State court. The limitation period shall run from . . . the date on which
      the judgment became final by the conclusion of direct review or the
      expiration of the time for seeking such review . . . .

28 U.S.C. § 2244(d)(1)(A). Direct review does not conclude for purposes of

§ 2244(d)(1)(A) until the “availability of direct appeals to state courts, and to [the

Supreme] Court, has been exhausted.” Jimenez v. Quarterman, 555 U.S. 113, 119

(2009) (citations omitted).

    Perez timely appealed his conviction to the OCCA, and that court affirmed the

conviction on September 18, 2003. Because he did not file a certiorari petition in the

90-day period available to do so, his conviction became final on December 17, 2003.

See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999) (stating that for purposes of

§ 2244(d)(1)(A), the judgment becomes final, “if no petition for certiorari is filed,

after the time for filing a petition for certiorari with the Supreme Court has passed”).

The one-year period of limitations thus began to run the next day: December 18,

2003. So Perez had until December 20, 2004, to file his § 2254 petition (allowing for

Saturday and Sunday). Thus, if we go by the date on which his direct review

concluded, his habeas petition filed on November 12, 2014, was untimely by about

ten years.



                                           5
    B. Newly Recognized Constitutional Right

    Where the Supreme Court recognizes a new constitutional right, § 2244(d)(1)(C)

provides that the statute of limitations for habeas petitions may run from “the date on

which the constitutional right asserted was initially recognized by the Supreme Court,

if the right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review . . . .” Perez argues that he is “entitled to

relief due to a [change in the law] and the benefits of the new rulings in state court

and federal court.” Appellant’s Combined Opening Br. & Appl. for COA at 12

(alteration in original). Reading his brief liberally, we construe this argument to be

that § 2244(d)(1)(C) should apply to his case. In support of his argument, Perez cites

Rodriguez v. United States, 135 S. Ct. 1609 (2015).

    In Rodriguez, the Court held that “a police stop exceeding the time needed to

handle the matter for which the stop was made violates the Constitution’s shield

against unreasonable seizures.” 135 S. Ct. at 1612. The opinion was issued on April

21, 2015—one day before Perez filed his objection to the magistrate judge’s Report

and Recommendation. Because Perez did not bring it to the court’s attention in his

objection, the court did not address it in its order. But he did raise it in what was

interpreted as a motion for reconsideration. In denying his motion for

reconsideration, the district court concluded that “even if the Supreme Court newly

recognized a constitutional right in Rodriguez, that right is not retroactively

applicable to this case.” R. vol. I at 238. And because it was inapplicable to the case,

the district court held that § 2244(d)(1)(C) does not apply.

                                           6
    Whether § 2244(d)(1)(C) applies depends on whether Rodriguez asserted a

“newly recognized” right. Though the district court assumed that Rodriguez

announced such a right, we are not as quick to do so.

    The Court was clear in Rodriguez that the opinion did not announce a “new”

law—rather, the Court “adhere[d] to the line drawn in [Illinois v. Caballes, 543 U.S.

405 (2005)].” Rodriguez, 135 S. Ct. at 1612. Thus, rather than newly recognizing a

constitutional right, Rodriguez simply applied existing law. In explaining its holding,

the Court even quoted Caballes: “A seizure justified only by a police-observed traffic

violation . . . ‘become[s] unlawful if it is prolonged beyond the time reasonably

required to complete th[e] mission’ of issuing a ticket for the violation.” Rodriguez,

135 S. Ct. at 1612 (alterations in original) (quoting Caballes, 543 U.S. at 407). In its

analysis, the Court further explained that after it announced the limit on traffic stops

in Caballes (which also addressed a dog sniff), it “repeated that admonition in

[Arizona v. Johnson, 555 U.S. 323 (2009)]: The seizure remains lawful only ‘so long

as [unrelated] inquiries do not measurably extend the duration of the stop.’”

Rodriguez, 135 S. Ct. at 1615 (second alteration in original) (quoting Johnson, 555

U.S. at 333).

    Thus, because Rodriguez did not pronounce a “newly recognized” “constitutional

right . . . recognized by the Supreme Court,” and Perez has not identified any other

cases that may have done so, § 2244(d)(1)(C) does not apply to his case.




                                           7
    C. Discovery of Factual Predicate of the Habeas Claims

    Finally, § 2244(d)(1)(D) provides that the limitation period may run from “the

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

discovered through the exercise of due diligence.” We cannot discern anywhere Perez

addressed this subsection in his brief before us. Normally, we would consider Perez

to have waived any argument that he failed to raise on appeal. See, e.g., United States

v. Pursley, 577 F.3d 1204, 1232 n.18 (10th Cir. 2009) (“Because [the defendant]

failed to raise these arguments on appeal, we deem them to be waived.”). But out of

an abundance of caution and leniency for his pro se brief, we will address this

possible start date for the running of the statute of limitations.

    In his objections to the government’s motion to dismiss, Perez asserted that “he

did not know anything of or about a federal statute, AEDPA until [the government

filed the] motion to dismiss.” R. vol. I at 166. He said that “he still does not

understand this and is confused and mixed up.” Id. But he listed May 2013 as the

“date of discovery.” Id. In doing so, however, he simply identified it as the date of

discovery of his legal claims—not the factual background to support them. See

Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (explaining that

§ 2244(d)(1)(D) concerns only the alert to the “factual basis for [a defendant’s]

claim” (emphasis in original)). And even if we were to accept May 2013 as the date

of some sort of factual revelation, Perez still failed to file his § 2254 petition within

one year—he filed it in November 2014. Thus, § 2244(d)(1)(D) does not apply.



                                             8
    D. Statutory or Equitable Tolling

    Because none of the other subsections apply, Perez’s case must be governed by

§ 2244(d)(1)(A), which would indicate that Perez needed to file his habeas petition

no later than December 20, 2004, absent statutory or equitable tolling. Section

2244(d)(2) states that “[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of limitation under this

subsection.” Here, Perez properly filed a petition for collateral review in state court.

    Perez filed his first application for post-conviction relief on August 18, 2004,

thereby tolling his one-year period with 125 days remaining. See § 2244(d)(2).

Therefore, the statute of limitations period was tolled while that petition was

pending, until March 27, 2008, when the OCCA affirmed the district court’s August

14, 2006 ruling denying relief on the merits.2 Thus, the statute of limitations period

was extended 125 days from March 27, 2008, or until July 30, 2008. Perez’s motion

to modify sentence and his second application for post-conviction relief were both

filed after the statute of limitations for his habeas petition had passed. Thus, they

have no effect on our analysis. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.

2006) (“Only state petitions for post-conviction relief filed within the one year

allowed by AEDPA will toll the statute of limitations.”).


    2
      There is some debate as to whether the statute of limitations was tolled through
September 13, 2006, or March 27, 2008. It depends on whether Perez properly filed
his September 13, 2006 appeal. Ultimately, because it does not change the outcome
of the analysis, we go with the latter date.
                                            9
    Because Perez failed to file his habeas petition by July 30, 2008, when the

statutory tolling period concluded, Perez’s habeas petition was timely only if

equitable tolling applies. This, however, is “a remedy suitable only in extraordinary

circumstances.” Id. (internal quotation marks omitted). Perez bears the burden of

“show[ing] both extraordinary circumstances preventing timeliness and diligent

pursuit of his claim.” Id. In this case, the district court did not abuse its discretion in

concluding that Perez failed to meet his burden—equitable tolling does not apply.

    Although he made several arguments about ineffective assistance of counsel and

his unawareness of the AEDPA-tolling period, nothing in his brief rises to the level of

a rare or exceptional circumstance that would warrant equitable tolling. He argued, “I

cannot speak English. I am Mexican-Latino. I am not American! I can[’]t get help

here a lot.” Appellant’s Combined Opening Br. & Appl. for COA at 5. He also said

that his lawyer “[took] advantage of [him] because [he is] Latino.” Id. at 9. While we

can sympathize with Perez’s alleged difficulty with his legal counsel and navigating

the habeas process as a non-English speaker, he has not identified an extraordinary

circumstance. “There is no right to effective assistance of counsel on habeas corpus,”

and “any misunderstandings of the law are attributable directly to [Perez].” Cabrera

v. Zavaras, 261 F. App’x 102, 105 (10th Cir. 2008) (unpublished). Moreover, it is

beyond question 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) (internal quotation marks omitted).



                                            10
    Moreover, even if we were to consider his issues with counsel and his language

barrier an extraordinary circumstance, Perez has not shown that he has diligently

pursued his federal claims. He said that he “should not have been deemed

procedurally barred from relief due to his diligence.” Appellant’s Combined Opening

Br. & Appl. for COA at 9. But Perez was required to “allege with specificity ‘the

steps he took to diligently pursue his federal claims.’” Yang v. Archuleta, 525 F.3d

925, 930 (10th Cir. 2008) (quoting Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998)). That he failed to do. Equitable tolling does not apply.

                                   CONCLUSION

    In sum, reasonable jurists could not debate the correctness of the district court’s

dismissal. Therefore, we DENY his request for a COA and the motion to proceed in

forma pauperis and DISMISS this appeal.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                          11
