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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before KELLY , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ David Carrillo seeks a certificate of appeal ability (“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 c ourt 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 hi m to life in prison for the

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

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Elisabeth A. Shumaker Clerk of Court-2- murder, twenty years for cons piracy, and eight years for c ontributing to the delinquency of a minor. After the trial, Carrillo’s court-appointed defens e counsel requested $15,265.42 in fees and costs. The trial court granted this request an d 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 re lief until August 5, 2002. Th e state courts denied that motion, along with several s ubsequent motions Carrillo file d. On February 9, 2015, Carrillo filed a motion to reduce the restit ution award by $30 base d on improper charges submitted by his trial attorney. That day, th e trial court granted his motion, ordering that Carrillo’s “sentence shall be corrected by redu cing the amount of re stitution for attorney charges by $30.00” and that the “mitti mus shall be amended accordingly.” Carrillo filed a pro se § 2254 habeas pe tition on February 24, 20 15. The district court concluded that the petition was time-barre d and that the limitati on period should not be equitably tolled. It dismissed the petiti on and denied a COA. Carrillo filed a motion to alter or amend the judgment, which the di strict 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 c onstitutional right.” § 2253(c)(2). A habeas petition generally must be filed within one year of “the date on which the judgment-3- became final by the conclusion of direct revi ew or the expiration of the time for seeking such review.” § 2244(d)(1)(A). But “[t]he ti me during which a properly filed application for State post-conviction or other collateral re view . . . 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 habe as petition is untimely. See Fl eming 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, 54 9 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 ju dgment 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 limita tions period when a corrected sentence is entered, even if a petitioner on ly asserts claims challenging his conviction rather than the corrected sentence. Id. at 1288, 1292-93; se e 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 Fe rreira’s approach. In Prendergast v. Clements, 699 F.3d 1182 (10t h Cir. 2012), the petitioner was convicted in Colorado state court and sentenced to a term of probation wh ich became final in 2004. Id. at 1183.-4- Petitioner violated his terms of probation and was re sentenced to a term of imprisonment in 2009. Id. We concluded that a claim challenging petitioner’s co nviction filed within one year of the 2009 resentencing was untimel y, rejecting the argument that “the attacks on his original conviction are now somehow resu rrected” 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 El eventh Circuit’s position.” Id. 1 We are bound to follow Prendergast. Se e 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 convic tion rather than his corrected sentence—are time barred. Carrillo’s conviction and sent ence became final on Ma y 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 f ile his § 2254 petition or any state post-conviction motions that would toll th e limitations period within one year of that date. See § 2244(d)(1)(A), (d)(2). 2

1 The Supreme Court declined to addre ss the issue of whether a petitioner who obtains relief in a collateral attack on his sentence may “f ile a subsequent application challenging not only his resulting, new sent ence, but also his original, undisturbed conviction.” Magwood v. Pa tterson, 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 judgmen t that arose as a re sult of a previous successful action.” Id. at 342 n.16 (quotation omitted).

2 There may be circumstances in which a state court’s rese ntencing could give rise to a claim challenging th e validity of a petitioner’s convi ction. 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 al though Carrillo argued before the district court that he should be entitled to equitable tolling, he does not advance an equitable tolling-5- III For the foregoing reasons, we DENY a COA and DISMISS the appeal. Carrillo’s motion to proceed in forma pauperis is GRANTED

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Entered for the Court

Carlos F. Lucero Circuit Judge

argument in this court. Accordingly, any such argument is waived. See United States v. Springfield, 33 7 F.3d 1175, 1178 (10th Cir. 2003) (applicant waives argument on appeal by failing to raise it “i n either his application for a COA or his brief on appeal”).