FILED

United States Court of Appeals

Tenth Circuit

March 14, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GUADALUPE RUBIO-DIAZ,

Petitioner-Appellant,

v.

KEVIN MILYARD, S.C.F. Warden;

COLORADO ATTORNEY

GENERAL,

Respondents-Appellees.

No. 07-1355

(D.C. No. 07-cv-00990-ZLW)

(D. Colo.)

ORDER DENYING

CERTIFICATE OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Guadalupe Rubio-Diaz, a state prisoner proceeding pro se, requests a

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

U.S.C. § 2254 application for habeas relief. For substantially the same reasons

set forth by the district court, we DENY a COA and DISMISS the appeal.

Rubio-Diaz was convicted in Colorado state court in 1992, and his

conviction was affirmed on appeal in 1993. In 2004, he filed a motion in state

court challenging the validity of his sentence. These postconviction proceedings

ended on July 10, 2006, when the Colorado Supreme Court denied a writ of
1

 Rubio-Diaz’s conviction became final before the one-year limitation

period was enacted into law on April 24, 1996. “[F]or prisoners whose

convictions became final before April 24, 1996, the one-year statute of limitation

does not begin to run until April 24, 1996.” Hoggro v. Boone, 150 F.3d 1223,

1225 (10th Cir. 1998). Rubio-Diaz did not allege that any other date should be

used to calculate the limitation period. See § 2244(d)(1)(B)-(D).

2

 The district court’s decision is consistent with our recent opinion, Kilgore

v. Estep, ___ F.3d ___, 2008 WL 638727, at *5 (10th Cir. Mar. 11, 2008), in

which we held that a court may dismiss a § 2254 habeas petition sua sponte if the

petition is clearly untimely on its face.

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certiorari. Rubio-Diaz then sought habeas relief in federal district court under

§ 2254 in April 2007.

Upon receipt of Rubio-Diaz’s petition, a magistrate judge issued an order to

show cause why the application was not untimely under the one-year limitation

period in § 2244(d). In the order, the magistrate determined that the limitation

period began to run on April 24, 1996.1

 Because Rubio-Diaz did not allege that

he had filed any postconviction motions between 1996 and 2004 that might have

tolled the period, the magistrate concluded that, based on the face of the

application, the one-year period had expired.2

In his response to the order to show cause, Rubio-Diaz did not contest the

magistrate’s calculations. Instead, he contended that he was entitled to equitable

tolling because: (1) He could not read, write, or speak English at the time of his

offense, and was thus dependent on others to assist in his appeals; (2) He was

incarcerated in a prison outside of Colorado after his direct appeal and until 1998,

and therefore could not access Colorado courts during that time; (3) Only in July
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2004 did he discover that he had an arguably meritorious claim; (4) He was not

adequately advised of his rights under the Uniform Commercial Code when he

entered his guilty plea; (5) The purpose of the one-year period of limitation is to

prevent relitigation of stale cases, but he attacks a present conviction and

sentence; and (6) Because he raises jurisdictional claims, the one-year bar should

not apply.

The district court concluded that none of these arguments warranted

equitable tolling. Finding that Rubio-Diaz’s motion was time barred, the district

court dismissed his petition and denied a COA. The court also denied his motion

to reconsider and his request to proceed on appeal in forma pauperis. Rubio-Diaz

now seeks a COA from this court.

Rubio-Diaz was denied a COA, and thus he may not appeal the district

court’s decision absent a grant of a COA by this court. § 2253(c)(1)(A). Because

the district court dismissed Rubio-Diaz’s petition on procedural grounds and did

not reach the merits of his claim, to obtain a COA he must show “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 reasonable jurists could not debate the district court’s

decision to dismiss the petition as time barred. As Rubio-Diaz conceded, his

application was untimely, statutory tolling did not apply, and thus absent

equitable tolling, his petition was subject to dismissal. In order to prevail on his
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request for equitable tolling, Rubio-Diaz bears the burden of establishing: 

“(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005). Rubio-Diaz offers several reasons why pursuit of his rights was

difficult, but as the district court concluded, he has failed to establish either

diligence or extraordinary circumstances. In particular, he offers no explanation

for the nine-month delay between the conclusion of his state court proceedings

and the filing of his federal habeas petition. See id. (holding that a petitioner

failed to establish diligence when he “sat on [his rights] for five more months

after his [state] proceedings became final before deciding to seek relief in federal

court”). Because he failed to bear his burden of establishing the prerequisites for

equitable tolling, the district court correctly concluded that his petition was time

barred.

For the foregoing reasons, we DENY a COA and DISMISS the appeal. We

GRANT Rubio-Diaz’s motion to proceed on appeal in forma pauperis.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge