UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK SANTINI, a/k/a Marvin Engles, Petitioner–Appellant,

v. TOM CLEMENTS, Ex ecutive Director, Colorado Department of Corrections; TRAVIS TRANI, Warden, Arrowhead Correctional Center; JOHN SUTHERS, Attorney General, State of Colorado, Respondents–Appellees. No. 12-1266 (D.C. No. 1:11- CV-03367-LTB) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Mark Santini, a state prisoner appearing pro se, seeks a certificate of appealability (“COA”) to challenge the district court’s deni al of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collateral estoppel.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

### October 5, 2012
Elisabeth A. Shumaker Clerk of Court-2- I Santini pled guilty to second-degree burglar y and third-degree assault in Colorado

state court. On September 20, 1999, he was sentenced to twelve years’ imprisonment for the burglary conviction and a concurrent twenty-four month term for the assault conviction. Santini did not appeal. On January 26, 2000, Santini filed a motion for sentence reconsideration under Colo. R. Crim. P. 35(b). The trial court denied his motion on September 27, 2000. Again, Santini did not appeal. On August 13, 2001 , Santini filed a pro se motion to correct or vacate his sentence. Construing this as a motion fo r post-conviction relief pursuant to Colo. R. Crim. P. 35(c), the state trial court deni ed the motion on Decem ber 10, 2001. The Colorado Court of Appeals affirmed the deni al of post-conviction relief on September 21,
2006. Santini did not petition the Colorado Supreme Court for certiorari review. On March 24, 2008, Santini filed a sec ond motion for post-conviction relief under Colo. R. Crim. P. 35(c). The state trial cour t denied the motion on May 2, 2008. Santini appealed, and on August 12, 20 10, the Colorado Court of Appe als affirmed the denial. The Colorado Supreme Court denied Santini’s re quest for certiorari review on January 3,
2011. On December 23, 2011, Santini filed a pe tition for habeas corpus relief under 28 U.S.C. § 2254. He claimed that the state courts improperly denied his post-conviction-3- motions, that he was not prope rly advised when he entered his plea, and that he was denied due process and effectiv e assistance of counsel at th e plea and sentencing stages of his case. The government argued that the pe tition was barred by th e one-year statute of limitations period found in § 2244(d). After ordering Santini to respond, the district court dismissed the petition as untimely.
II Santini may not appeal the district court’s denial of habeas relief without a COA. § 2253(c)(1)(A). We will grant a COA only if Santini demonstrates “that reasonable jurists could debate whether (or, for that ma tter, agree that) the pe tition should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). A The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a oneyear statute of limitations peri od on habeas petitions, which ge nerally begins to run upon “conclusion of direct review or the expiratio n of the time for seeking such review.” § 2244(d)(1). Santini had forty-five days after entry of judgment to file an appeal. See Colo. App. R. 4(b)(1) (1999). Santini was sentenced on September 20, 1999; therefore, he had until November 4, 1999 to appeal. See Colo. R. App. P. 26( a) (1999) (providing-4- that the computation of time shall include w eekends and holidays when the time period is longer than seven days, but shall not include t hose days when they are the last day of the prescribed period). Santini’ s AEDPA limitations period thus began to run on November 5, 1999. A properly filed state post -conviction motion tolls th e AEDPA limitations period while the motion is pending. § 2244(d)(2 ). Santini’s AEDPA limitations period ran uninterrupted for eighty-two days from November 5, 1999, until it was tolled on January 26, 2000 when Santini filed a motion for rec onsideration under Colo. R. Crim. P. 35(b). See Robinson v. Golder, 443 F.3d 718, 721 (1 0th Cir. 2006) (a properly filed motion for post-conviction relief under Colo. R. Crim. P. 35(b) tolls the AEDPA limitations period). The limitations period remained tolled until November 13, 2000, 1 when the deadline to appeal from the trial court’s September 27, 2000 denial of the motion expired. The AEDPA limitations period then ra n uninterrupted for 272 days from November 14, 2000 until August 13, 2001, when San tini filed his first Rule 35(c) motion.

1 The forty-five day period to appeal th e trial court’s September 27, 2000 order denying the post-conviction motio n expired on Saturday, Nove mber 11, 2000; therefore, the last day to file the appeal was Monday, November 13, 2000. S ee Colo. R. App. P. 26(a) (if the time to file an appeal expire s on a Saturday, Sunday, or holiday, the period continues to run until the next day that is not such a day).-5- See Habteselassie v. Novak, 209 F.3d 1208, 1213 (10th Cir. 2000 ) (a properly filed motion for post-conviction relief under Colo . R. Crim. P. 35(c) tolls the AEDPA limitations period). After the trial court de nied the motion and the Colorado Court of Appeals affirmed the denial, the limitati ons period remained tolled until the time for filing a petition for writ of certiorari with the Colorado Supreme Court expired on November 5, 2006. See Serrano v. Willia ms, 383 F.3d 1181, 1185 (10th Cir. 2004) (AEDPA limitations period is tolled during th e period in which a petitioner could have sought an appeal under state la w, including certiorari). Acco rding to the version of Colo. R. App. P. 52 in effect in 2006, a petition fo r writ of certiorari c ould not be filed “until the time for filing a petition for rehearing in th e Court of Appeals ha[d] expired.” Colo. R. App. P. 52(b)(2) (2006). Because Santin i had fourteen days to file a petition for rehearing, see Colo. R. App. P. 40(a) (2006), and thirty days to seek the writ of certiorari, see Colo. R. App. P. 52(b)(3 ), Santini’s last day to seek certiorari was November 6,
2006. 2 At that time, 354 days had run against the AEDPA lim itations period. The oneyear AEDPA limitations period expired el even days later, on November 17, 2006.

2 Santini’s deadline fell on Satu rday, November 4, 2006. The last day to file the appeal was therefore Monday, November 6, 2006. See Colo. R. App. P. 26(a).-6- Santini’s 2011 habeas petition is therefor e untimely unless equitable tolling applies. 3

B AEDPA’s one-year statute of limitations for habeas petitions is “subject to equitable tolling in appropriate cases.” S ee Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). In general, “a litigant seeking equitabl e tolling bears the burd en of establishing two elements: (1) that he has been pursu ing his rights diligently , and (2) that some extraordinary circumstance stoo d in his way.” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Equitable tolling of the AE DPA limitations period is appropriate “only in rare and exceptional circumstances.” Id. at 1127. A “garden variety claim of excusable neglect” by an attorney is not enough. Holla nd, 130 S. Ct. at 2564. We agree with the district court that Santini failed to meet this burden. Santini first argues that equitable tolling applies because his delay in filing was caused by “ineffective communication” with hi s post-conviction counsel. In Holland, the Supreme Court held that counsel’s ineff ective communication may be “extraordinary”

3 Santini’s March 28, 2008, petition for post-conviction relief under Colo. R. Crim. P. 35(c) was filed after the AEDPA limitations period expired and thus is not relevant to our timeliness analysis. See Cl ark v. Oklahoma, 468 F. 3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-convictio n relief filed within the one year allowed by AEDPA will toll the statute of limitations.”).-7- enough to justify equitable tolling in certai n circumstances. Id. at 2564. However, Santini advances no evidence demonstrating that despite his diligence , his attorney acted extraordinarily in fa iling to communicate. Merely stat ing that there was “ineffective communication,” without more, is insuffi cient to warrant equitable tolling. Santini next claims that he is entitled to equitabl e tolling because his counsel erroneously advised him that his AEDPA lim itations period commenced on February 8, 2011. Santini fails to esta blish that this advice was extraordinary. A negligent miscalculation of a filing deadlin e is not “extraordinar y” for purposes of equitable tolling. Id. Finally, Santini argues that he is en titled to equitable tolling because he was transferred to various detention facilities and did not receive his mail. Again, Santini does not provide any evidence to support hi s assertion that the delays in his postconviction filings were caused by a failure to receive mail. The record provides no evidence that Santini’s mail wa s returned to sender—or a ny other evidence of a mail delay—during the relevant time period. Rega rdless, lack of notice can provide grounds for equitable tolling only if the prisoner “acte d diligently in the ma tter.” Woodward v. Williams, 263 F.3d 1135, 1143 (1 0th Cir. 2001). The record is void of any evidence that-8- Santini acted diligently to ensure that he was informed as to the status of his case during the times that the AEDP A limitations period ran. 4

III For the foregoing reasons, we DENY a COA and DISMISS the appeal. We DENY Santini’s motion to proceed in forma pauperis because he has failed to advance “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court

Carlos F. Lucero Circuit Judge

4 There is record evidence that Santini did not receive the state district court’s March 24, 2008 order dismissing his sec ond Rule 35(c) motion by mail. However, Santini’s AEDPA limitations period expired be fore this second Rule 35(c) motion was filed; therefore, it is not relevant to our analysis.