UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DAVID RICHARD CARRILLO, 

 Petitioner - Appellant, 

v. 

DAVID ZUPAN, Warden of the Colorado 

Territorial Correctional Facility; 

CYNTHIA COFFMAN, the Attorney 

General of the State of Colorado, 

 Respondents - Appellees. 

No. 15-1240 

(D.C. No. 1:15-CV-00376-LTB) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

David Carrillo seeks a certificate of appealability (“COA”) to appeal the district 

court’s dismissal of his 28 U.S.C. § 2554 habeas petition as untimely. We deny a COA 

and dismiss the appeal. 

I 

Carrillo was convicted in Colorado state court of first degree murder, conspiracy 

to commit first degree murder, and contributing to the delinquency of a minor for his 

participation in a 1993 gang killing. The trial court sentenced him to life in prison for the 

 *

 This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

September 28, 2015

Elisabeth A. Shumaker 

Clerk of Court
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murder, twenty years for conspiracy, and eight years for contributing to the delinquency 

of a minor. After the trial, Carrillo’s court-appointed defense counsel requested 

$15,265.42 in fees and costs. The trial court granted this request and required Carrillo to 

pay the State of Colorado that amount in restitution. 

 The Colorado Supreme Court affirmed Carrillo’s conviction and sentence on 

February 22, 1999. Carrillo v. People, 974 P.2d 478 (Colo. 1999). Carrillo did not file a 

motion for state post-conviction relief until August 5, 2002. The state courts denied that 

motion, along with several subsequent motions Carrillo filed. On February 9, 2015, 

Carrillo filed a motion to reduce the restitution award by $30 based on improper charges 

submitted by his trial attorney. That day, the trial court granted his motion, ordering that 

Carrillo’s “sentence shall be corrected by reducing the amount of restitution for attorney 

charges by $30.00” and that the “mittimus shall be amended accordingly.”

Carrillo filed a pro se § 2254 habeas petition on February 24, 2015. The district 

court concluded that the petition was time-barred and that the limitation period should not 

be equitably tolled. It dismissed the petition and denied a COA. Carrillo filed a motion 

to alter or amend the judgment, which the district court also denied. He now seeks a 

COA from this court. 

II 

 A petitioner may not appeal the denial of habeas relief under § 2254 without a 

COA. § 2253(c)(1)(A). We may issue a COA “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). A habeas 

petition generally must be filed within one year of “the date on which the judgment 
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became final by the conclusion of direct review or the expiration of the time for seeking 

such review.” § 2244(d)(1)(A). But “[t]he time during which a properly filed application 

for State post-conviction or other collateral review . . . is pending shall not be counted 

toward any period of limitation.” § 2244(d)(2). We review de novo a district court’s 

conclusion that a habeas petition is untimely. See Fleming v. Evans, 481 F.3d 1249, 

1254 (10th Cir. 2007). 

 Carrillo contends that his petition is not time-barred because the state court’s 

reduction of restitution by $30 constituted an amended sentence restarting the limitations 

period. He relies on Burton v. Stewart, 549 U.S. 147 (2007), which stated that the 

§ 2244(d)(1)(A) limitations period did not begin until “both [petitioner’s] conviction and 

sentence became final by the conclusion of direct review or the expiration of the time for 

seeking such review” and that the relevant judgment is “the judgment pursuant to which 

[petitioner] was being detained.” Id. at 156-57 (quotation omitted). An Eleventh Circuit 

case, Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286 (11th Cir. 2007), 

interpreted Burton as restarting the limitations period when a corrected sentence is 

entered, even if a petitioner only asserts claims challenging his conviction rather than the 

corrected sentence. Id. at 1288, 1292-93; see also Sullivan v. Suthers, 2008 U.S. Dist. 

LEXIS 59318, at *6 (D. Colo. Aug. 6, 2008) (unpublished) (adopting Ferreira’s 

reasoning). 

 Our circuit, however, does not follow Ferreira’s approach. In Prendergast v. 

Clements, 699 F.3d 1182 (10th Cir. 2012), the petitioner was convicted in Colorado state 

court and sentenced to a term of probation which became final in 2004. Id. at 1183. 
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Petitioner violated his terms of probation and was resentenced to a term of imprisonment 

in 2009. Id. We concluded that a claim challenging petitioner’s conviction filed within 

one year of the 2009 resentencing was untimely, rejecting the argument that “the attacks 

on his original conviction are now somehow resurrected” by the resentencing. Id. at 1186 

(citing Ferreira and Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003)). We “decline[d] 

to endorse the Eleventh Circuit’s position.” Id.1 

 We are bound to follow Prendergast. See In re Smith, 10 F.3d 723, 724 (10th Cir. 

1993). Under the rule established in that case, the claims advanced by Carrillo before 

this court—all of which challenge his conviction rather than his corrected sentence—are 

time barred. Carrillo’s conviction and sentence became final on May 24, 1999, ninety 

days after the Colorado Supreme Court issued its opinion in his direct appeal. See Locke 

v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001). He did not file his § 2254 petition or any 

state post-conviction motions that would toll the limitations period within one year of that 

date. See § 2244(d)(1)(A), (d)(2).2

 

 1

 The Supreme Court declined to address the issue of whether a petitioner who 

obtains relief in a collateral attack on his sentence may “file a subsequent application 

challenging not only his resulting, new sentence, but also his original, undisturbed 

conviction.” Magwood v. Patterson, 561 U.S. 320, 342 (2010) (emphases omitted). 

It noted, however, that several Courts of Appeals have held that such a petitioner 

“may challenge only the portion of a judgment that arose as a result of a previous 

successful action.” Id. at 342 n.16 (quotation omitted). 

2

 There may be circumstances in which a state court’s resentencing could give 

rise to a claim challenging the validity of a petitioner’s conviction. In such cases, the 

petitioner may be entitled to equitable tolling or a new limitations period under 

§ 2244(d)(1)(B)-(D). However, in this case, Carrillo’s claims are wholly unrelated to 

his corrected sentence. And although Carrillo argued before the district court that he 

should be entitled to equitable tolling, he does not advance an equitable tolling 
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III 

 For the foregoing reasons, we DENY a COA and DISMISS the appeal. Carrillo’s 

motion to proceed in forma pauperis is GRANTED.

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 

argument in this court. Accordingly, any such argument is waived. See United 

States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (applicant waives 

argument on appeal by failing to raise it “in either his application for a COA or his 

brief on appeal”).