UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ PANFILO PEREZ, Petitioner - Appellant,

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

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HOLMES , MATHESON , and PHILLIPS , Circuit Judges.

________________ _________________ Panfilo Perez, an Oklahoma state prisone r, seeks a Certificate of Appealability (COA) 1 to enable him to appeal the district court’s orde r dismissing his petition for a writ of habeas corpus as time barred u nder 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 pro ceed in forma pauperis. We may issue a COA only if the petitione r makes “a substantial showing of the denial of a constitutional ri ght.” 28 U.S.C. § 2253(c)(2). To do so, a petitioner must

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collateral estoppel.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). FILED United States Court of Appeals Tenth Circuit 

### December 15, 2015
Elisabeth A. Shumaker Clerk of Court2 show that reasonable jurists could differ as to whether hi s 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 conc lude that Perez has not sati sfied his burden. Reasonable jurists could not debate the correctness of the district c ourt’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 DI SMISS this appeal. BACKGROUND On November 4, 2002, a jury convicted Perez on dr ug-trafficking charges. For this crime, the district cour t later sentenced him to sixty years of imprisonment and a $100,000 fine. On September 18, 2003, th e Oklahoma Court of Criminal Appeals (OCCA) affirmed Perez’s conviction on appeal. He did not file a petition for certiorari in the United St ates Supreme Court. The following timeline outlines th e 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 re versed and remanded to the district court for further post-conviction proceedings.

 August 14, 2006: Following evidentiary h earings, the distri ct court denied relief.

 September 13, 2006: Perez improperly file d an appeal of the district court’s post-conviction ruling from August 14, 2006, as a second application for postconviction relief.

 July 19, 2007: Perez filed an applicati on to appeal out of time the district court’s August 14, 2006 ruling.

 March 3, 2008: The district court reco mmended granting Perez’s appeal out of time, noting that he improperly attempte d to appeal on September 13, 2006.3  March 27, 2008: The OCCA affirmed th e 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 file d a second application fo r 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 applicati on for appeal out of time in the district court, which the district cour t recommended on August 13, 2013.

 October 21, 2013: The OCCA granted Perez’s request fo r 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 fe deral habeas petition now be fore us. On November 13, 2014, Perez filed his request for habeas relief. In respons e 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 objecti ons to the motion, as well as a motion for a “habeas corpus hearing, discovery and th e 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 magi strate, in a lengthy and thorough Report and Recommendation, recommended that Pere z’s petition be denied. The district court adopted the recommendation and dism issed Perez’s petition as time barred. After Perez filed two motions for reconsider ation, both of which the district court denied, this appeal followed. DISCUSSION A petitioner must obtain a COA before he ca n appeal the denial of any final order in a habeas corpus proceedi ng. 28 U.S.C. § 2253(c)(1); Steffy v. Sirmons , 273 F.4 App’x 748, 749–50 (10th Ci r. 2008) (unpublished) (“ The [AEDPA] conditions a petitioner’s right to appeal a denial of hab eas relief under § 2241 upon a grant of a COA.”). To receive a COA, a petitioner must demonstrate that “j urists of reason would find it debatable whethe r 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 th e 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, Pere z’s case may implicat e three of the four dates: the conclusion of his direct revi ew, a constitutional ri ght newly recognized by the Supreme Court, and the discovery of th e factual predicate of the habeas claim. The limitation period “may be tolled, howev er, during the pendency of any ‘properly filed application for State post-convi ction 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.5 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 fi nal to file his petition fo r writ of habeas corpus: A 1-year period of limita tion shall apply to an a pplication for a writ of habeas corpus by a person in cust ody pursuant to the judgment of a State court. The limitation period sha ll run from . . . the date on which the judgment became final by the conc lusion of direct review or the expiration of the time for s eeking such review . . . . 28 U.S.C. § 2244(d)(1)(A). Direct review does not c onclude for purposes of § 2244(d)(1)(A) until the “availability of direct appeals to state courts, and to [the Supreme] Court, ha s 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 c onviction became final on December 17, 2003. See Rhine v. Boone , 182 F.3d 1153, 1155 (10th Cir. 199 9) (stating that for purposes of § 2244(d)(1)(A), the judgment becomes final, “if no petition for cer tiorari is filed, after the time for filing a pe tition for certiorari with the Supreme Court has passed”). The one-year period of limitations thus be gan 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 pe tition filed on November 12, 2014, was untimely by about ten years.6 B. Newly Recognized Constitutional Right Where the Supreme Court recognizes a ne w constitutional right, § 2244(d)(1)(C) provides that the statute of limitations for habeas petiti ons may run from “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newl y recognized by the Supreme C ourt and made retroactively applicable to cases on collateral review . . . .” Perez argues that he is “entitled to relief due to a [change in th e law] and the benefits of th e new rulings in state court and federal court.” Appellant’s Combined Opening Br. & Appl. for COA at 12 (alteration in original). Reading his brief li berally, we construe this argument to be that § 2244(d)(1)(C) should appl y 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 st op 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 Pe rez 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 ad dress it in its order. But he did raise it in what was interpreted as a motion for reconsid eration. 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 wa s inapplicable to the case, the district court held that § 2244(d)(1)(C) does not apply.7 Whether § 2244(d)(1)(C) appl ies depends on whether Rodriguez asserted a “newly recognized” right. Though th e 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, rath er 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 (alterati ons in original) (quoting Caballes , 543 U.S. at 407). In its analysis, the Court further e xplained that after it announ ced 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 seiz ure remains lawful only ‘so long as [unrelated] inquiries do not measurably extend the duration of the stop.’” Rodriguez , 135 S. Ct. at 1615 (second alte ration 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.8 C. Discovery of Factual Predic ate 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 cl aim or claims presented could have been discovered through the exerci se of due diligence.” We ca nnot 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 moti on to dismiss, Perez asserted that “he did not know anything of or about a federa l 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 simp ly 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 reve lation, 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.9 D. Statutory or Equitable Tolling Because none of the other subsections a pply, Perez’s case must be governed by § 2244(d)(1)(A), which would indicate that Pe rez needed to file his habeas petition no later than December 20, 2004, absent statutory or equita ble tolling. Section 2244(d)(2) states that “[t]he time during which a properly filed application for State post-conviction or other collateral review w ith respect to the pe rtinent judgment or claim is pending shall not be counted toward any peri od of limitation under this subsection.” Here, Perez properly filed a petiti on for collateral review in state court. Perez filed his first application for pos t-conviction relief on August 18, 2004, thereby tolling his one-year peri od 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 Marc h 27, 2008, or until July 30, 2008. Perez’s motion to modify sentence and his second appli cation for post-conviction relief were both filed after the statute of limitations for hi s 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 de pends 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.10 Because Perez failed to file his ha beas petition by July 30, 2008, when the statutory tolling period conc luded, Perez’s habeas petition was timely only if equitable tolling applies. This, however, is “a remedy suitable onl y in extraordinary circumstances.” Id. (internal quotation ma rks omitted). Perez bears the burden of “show[ing] both extraordinary circumstan ces preventing timeliness and diligent pursuit of his claim.” Id. In this case, the di strict court did not a buse its discretion in concluding that Perez failed to meet his burden—equitable tolling does not apply. Although he made several ar guments about ineffective assistance of counsel and his unawareness of the AEDPA-tolling period, not hing in his brief rises to the level of a rare or exceptional circumstance that woul d 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 Comb ined 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 diffic ulty 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 effectiv e 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) (unpublis hed). Moreover, it is beyond question that “ignorance of the law, even for an in carcerated pro se petitioner, generally does not ex cuse prompt filing.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (internal quota tion marks omitted).11 Moreover, even if we were to consider his issues wi th counsel a nd his language barrier an extraordinary circumstance, Pe rez has not shown that he has diligently pursued his federal claims. He said th at he “should not have been deemed procedurally barred from reli ef due to his diligence.” A ppellant’s Combined Opening Br. & Appl. for COA at 9. Bu t Perez was required to “alle ge with specificity ‘the steps he took to diligently pursue his federal claims.’” Yang v. Archuleta , 525 F.3d 925, 930 (10th Ci r. 2008) (quoting Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998)). That he failed to do. Eq uitable 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 DI SMISS this appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge