FILED

United States Court of Appeals

Tenth Circuit

January 18, 2018

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VICTOR DAVID BRACAMONTESELIZONDO,

Petitioner - Appellant,

v.

JASON BRYANT, Warden,

Respondent - Appellee.

No. 17-6155

(D.C. No. 5:16-CV-01405-F)

(W.D. Okla.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before MATHESON, KELLY, and MURPHY, Circuit Judges. 

This matter is before the court on Victor David Bracamontes-Elizondo’s

pro se request for a certificate of appealability (“COA”). Bracamontes-Elizondo

seeks a COA so he can appeal the district court’s dismissal, on timeliness

grounds, of his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing no appeal may be taken from “a final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court” without first obtaining a COA); id. § 2244(d)(1)(A) (setting out a

one-year statute of limitations on § 2254 petitions running from the date on which

the conviction became final). Because Bracamontes-Elizondo has not “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal.

In a detailed Report and Recommendation, a magistrate judge concluded

Bracamontes-Elizondo’s Oklahoma state conviction for Aggravated Trafficking in

Illegal Drugs became final on August 2, 2013. In so doing, the magistrate judge

thoroughly explained why Bracamontes-Elizondo was in error in asserting his

state court conviction became final at some later date under the provisions of 28

U.S.C. § 2244(d)(1)(A)-(C). The magistrate judge further recommended that the

district court deny Bracamontes-Elizondo’s request for statutory tolling, id. §

2244(d)(2), and equitable tolling, Lawrence v. Florida, 549 U.S. 327 (2007). 

Upon de novo review, the district court adopted the Report and Recommendation

and dismissed Bracamontes-Elizondo’s § 2254 habeas petition with prejudice.

The granting of a COA is a jurisdictional prerequisite to BracamontesElizondo’s appeal from the dismissal of his § 2254 petition. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA, he must make “a

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

§ 2253(c)(2). To make the requisite showing, he must demonstrate “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at

336 (quotations omitted). When a district court dismisses a § 2254 motion on

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procedural grounds, a petitioner is entitled to a COA only if he shows both that

reasonable jurists would find it debatable whether he had stated a valid

constitutional claim and debatable whether the district court’s procedural ruling

was correct. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating

whether Bracamontes-Elizondo has satisfied his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 537 U.S. at 338. Although

Bracamontes-Elizondo need not demonstrate his appeal will succeed to be entitled

to a COA, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted). As a further overlay on

this standard, we review for abuse of discretion the district court’s decision that

Bracamontes-Elizondo is not entitled to have the limitations period set out in

§ 2244(d)(1) equitably tolled. See Burger v. Scott, 317 F.3d 1133, 1141 (10th

Cir. 2003).

Having undertaken a review of Bracamontes-Elizondo’s appellate filings,

the magistrate judge’s Report and Recommendation, the district court’s Order,

and the entire record before this court pursuant to the framework set out by the

Supreme Court in Miller-El and Slack, we conclude Bracamontes-Elizondo is not

entitled to a COA. The district court’s resolution of Bracamontes-Elizondo’s

§ 2254 motion is not deserving of further proceedings or subject to a different

resolution on appeal. In so concluding, this court has nothing to add to the cogent

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analyses set out in the magistrate judge’s Report and Recommendation and the

district court’s Order of Dismissal. Accordingly, this court DENIES

Bracamontes-Elizondo’s request for a COA and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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