                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                        June 28, 2017
                        FOR THE TENTH CIRCUIT
                      _________________________________             Elisabeth A. Shumaker
                                                                        Clerk of Court
VALDAMAR LANSKY,

      Petitioner - Appellant,

v.                                                     No. 16-1431
                                              (D.C. No. 1:16-CV-00889-LTB)
JASON LENGERICH; THE                                     (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

      Respondents - Appellees.
                    _________________________________

          ORDER DENYING CERTIFICATE OF APPEALABILITY*
                  _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                 _________________________________

      Valdamar Lansky, a Colorado prisoner proceeding pro se,1 seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

28 U.S.C. § 2254 habeas application. To obtain a COA, Lansky must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.




      *  This order isn’t binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1 We liberally construe pro se pleadings. But we don’t act as an

advocate for pro se litigants. Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005).
§ 2253(c)(2). Because he hasn’t made this showing, we deny his COA

application and dismiss this matter.

      In 2008, a Colorado jury convicted Lansky of four counts of sexual

assault on a child. The trial court determined that Lansky was a habitual sex

offender and sentenced him to four concurrent terms of 36 years to life in

prison. The Colorado Court of Appeals (CCA) affirmed the conviction on

direct appeal on July 29, 2010. Lansky didn’t seek review by the Colorado

Supreme Court.

      In 2013, Lansky filed a petition for postconviction relief (PCR) in state

court. The court denied that petition. Nearly one year later, Lansky

attempted to appeal out of time the state court’s denial of his PCR petition. In

doing so, Lansky asserted that the state court’s alleged failure to timely

notify him of its denial of that petition constituted good cause sufficient to

justify the late filing of his appeal. See People v. Baker, 104 P.3d 893, 896

(Colo. 2005). The CCA rejected that argument and dismissed the appeal as

untimely.

      Lansky filed this action on April 20, 2016. His amended petition for a

writ of habeas corpus contains ten purported claims. First, Lansky asserts—

as he did in the CCA—that the state court failed to give Lansky notice that it

had denied his PCR petition. The district court dismissed this claim, noting

that challenges to a state’s post-conviction remedy, rather than the

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underlying judgment, aren’t reviewable in a habeas action. See Sellers v.

Ward, 135 F.3d 1333, 1339 (10th Cir. 1998).

      The district court dismissed Lansky’s nine remaining claims as time-

barred. The court noted that a one-year statute of limitations applies to

Lansky’s habeas claims. See 28 U.S.C. § 2244(d)(1) (“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 district

court concluded that Lansky’s statutory period began running on September

13, 2010, which was “the date on which [Lansky’s] judgment became final by

the conclusion of direct review or the expiration of the time for seeking such

review.” § 2244(d)(1)(A). The district court calculated this date by starting

from July 29, 2010—when the CCA affirmed Lansky’s conviction on direct

appeal—and then adding 46 days—the time within which Lansky was

required to seek certiorari of that affirmance in the Colorado Supreme Court.

See Colo. App. R. 52(b)(3) (2009).

      Next, the district court concluded that Lansky’s PCR petition didn’t toll

the statute of limitations. See § 2244(d)(2) (“The 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.”). In reaching that

conclusion, the district court noted that Lansky didn’t file his PCR petition

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until 2013, after the one-year limitations period had already run. See Clark v.

Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (explaining that PCR

proceedings initiated more than one year after final judgment don’t toll

limitations period).

      Finally, the district court concluded that Lansky isn’t entitled to

equitable tolling. To benefit from equitable tolling, Lansky needed to

demonstrate “(1) that he ha[d] been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.” Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). The district court concluded that

Lansky didn’t make either showing. With respect to the first requirement,

the court noted that Lansky delayed filing this habeas action for more than

five months after his PCR proceedings concluded. As for the second element,

although Lansky asserted that the state court failed to give Lansky notice

that it denied his PCR petition, the district court again noted that Lansky

filed his petition after the limitations period had expired. Accordingly, the

district court concluded that Lansky’s claims are time-barred.

      The district court then entered judgment against Lansky, and he now

requests a COA. Because the district court dismissed Lansky’s § 2254

application without reaching its merits, we will grant a COA only if Lansky

demonstrates both “[1] that jurists of reason would find it debatable whether

[his § 2254 application] states a valid claim of the denial of a constitutional

                                        4
right and [2] 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).

      Lansky has failed to establish that jurists of reason would find it

debatable whether the district court erred in dismissing Lansky’s habeas

claims as time-barred. Lansky merely asserts, as he did below, that “[t]he

reason for the time bar was that [the state court] failed to provi[de] [Lansky]

timely notice of the denial of the [p]etition for [PCR].” Aplt. Br. 23. But

Lansky filed (and the state court denied) his PCR petition after the one-

year limitations period had already expired. Thus, the district court

correctly ruled that the state court’s alleged failure to timely notify

Lansky that it had denied his PCR petition doesn’t entitle Lansky to

equitable tolling.

      Lansky likewise fails to establish that jurists of reason would find it

debatable whether the district court erred in dismissing Lansky’s remaining

habeas claim—that the state court failed to give Lansky notice it had denied

his PCR petition—as non-cognizable. As the district court correctly noted,

challenges to a state’s post-conviction remedy aren’t reviewable in a habeas

action. See Sellers, 135 F.3d at 1339.

      Because we conclude that reasonable jurists wouldn’t debate the

correctness of the district court’s procedural rulings, we deny Lansky’s

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request for a COA and dismiss this matter. See Slack, 529 U.S. at 485.

Lansky’s motion to proceed in forma pauperis is denied as moot.


                                      Entered for the Court


                                      Nancy L. Moritz
                                      Circuit Judge




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