*

 This order is not binding precedent except under the doctrines of law of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

March 9, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAWN MANDEL WINKLER,

Petitioner–Appellant,

No. 10-1554

(D.C. No. 1:10-CV-02124-ZLW)

(D. Colo.)

v.

ARISTEDES W. ZAVARAS,

Executive Director, Colorado

Department of Corrections; THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents–Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

Petitioner seeks a certificate of appealability to appeal the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. In 1994, Petitioner pled guilty to

one count of second-degree burglary and was sentenced to twenty years in prison

plus five years of parole. He did not file a direct appeal, and there were no

pending motions in the state court until Petitioner filed a Rule 35(c) motion in
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August 2009. In 2010, Petitioner filed the instant habeas petition which the

district court dismissed as untimely based on the one-year limitation period set

forth in 28 U.S.C. § 2244(d). 

In his opening brief and application for a certificate of appealability,

Petitioner argues the district court erred in denying his petition because he

suffered substantial violations of his constitutional rights and because the facts

underlying his claim of breach of the plea agreement did not occur until years

after his sentencing when the state retroactively applied new laws regarding

parole and earned-time credits to keep him incarcerated after he should have been

eligible for parole. After carefully reviewing Petitioner’s filings and the record

on appeal, we conclude that reasonable jurists would not debate whether the

district court erred in dismissing the petition as untimely. See Slack v. McDaniel,

529 U.S. 473, 484 (2000). A habeas petitioner is not entitled to equitable tolling

simply because he alleges his constitutional rights were violated during his trial

or sentencing. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). As for

Petitioner’s claim regarding the alleged breach of the plea agreement, Petitioner

asserts he was eligible for parole by November 13, 2000, and the state failed to

honor its obligation to release him from incarceration at this point. Thus, even if

we agree with Petitioner that the statute of limitations did not begin to run until

he learned that the government did not intend to honor the agreement, the

limitations period had clearly expired well before Petitioner filed his petition
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complaining of this breach. See 28 U.S.C. § 2244(d)(1)(D) (providing that the

one-year limitation period shall run from the latest of, inter alia, “the date on

which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence”).

We therefore DENY the application for a certificate of appealability and

DISMISS the appeal. We GRANT Petitioner’s motion for leave to proceed in

forma pauperis. All other pending motions are DENIED.

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge