* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 20, 2006
Elisabeth A. Shumaker Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALFONSO TAFOYA, Defendant-Appellant. No. 05-2092 (D.C. No. CIV-04-1116) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Alfonso Tafoya, a federal prisoner proceeding pro se , applies for a certificate of appealability (COA) to challenge the district court’s dismissal of his petition for habeas relief pursuant to 28 U.S.C. § 2255. The district court determined Mr. Tafoya’s petition was time barred bythe one-year statute of limitations in the Antiterrorism and Effective Deat h Penalty Act of 1996-2-

(AEDPA), see 28 U.S.C. § 2255. The court also denied his reques t for a COA. Exercising jurisdiction under 28 U.S.C. § 2253(a), and construing Mr. Tafoya’s pleadings liberally, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), we are not persuaded “jurists of reason would find . . . d ebatable” the district court’s rejection of Mr. Tafoya’s petition. Slack v. McDaniel , 529 U.S. 473, 484 (2000).
We therefore deny Mr. Tafoya’s request for a COA. Mr. Tafoya pled guilty to a federal drug charge and was sentenced to sixty months of imprisonment. Judgment was entered again st him on March 4, 2003, and he did not file a direct appeal challenging any aspect of his conviction or sentence. Nearly nineteen months later on Septembe r 30, 2004, Mr. Tafoya filed this habeas action challenging his sentence and cla iming his Sixth Amendment rights were violated due to ineffective assistance of counsel. In essence, Mr. Tafoya claimed he received a much longer sentence t han his counsel had led him to expect. The district court ordered him to show cause why his petition should not be dismissed as barred by the one year statute of limitations in ADEPA. In response, Mr. Tafoya contended the limitations peri od should not begin to run until November 23, 2003, when he allegedly learned in a letter from his attorney “that what he had been told prior to his plea and s entencing hearing was different from what actually took place during the sentencing hearing.” Rec., doc. 5 at 2. He also asserted that equitable tolling applied to his case because he had-3-

diligently pursued his claims by writing three lett ers to his attorney inquiring as to why he had received a longer sentence than expected . The district court rejected these arguments. First, the court noted Mr. Tafoya could not rely onthe statutory tolling provision in § 2255(4) which directs that the limit ations period “shall run from . . . the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligen ce.” 28 U.S.C. § 2255(4). The court reasoned that the November 23, 2003 lette r Mr. Tafoya received from his attorney did not disclose to him any facts he d id not already know at the time of sentencing, i.e. , that he did not receive the sentence he expected. Second, the district court rejected Mr. Tafoya’s ar gument that he was entitled to equitable tolling. The court pointed o ut that under controlling Tenth Circuit case law, “[e]quitable tolling is only avai lable when an inmate diligently pursues his claims and demonstrates that the failur e to timely file was caused by extraordinary circumstances beyond his control.” R ec., doc. 6 at 2 (internal quotations and citations omitted). See also Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000). The court reasoned that Mr. Tafo ya’s three letters to his attorney did not amount to a diligent pursuit of hi s claims. Nor was Mr. Tafoya able to point to anything that limited his ability to file his action within the required tolling period. The court therefore denie d Mr. Tafoya’s equitable tolling-4-

arguments and dismissed his petition. The issuance of a COA is jurisdictional, Miller-El v. Cockrell , 537 U.S. 322, 336 (2003), and can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of hi s constitutional claims or that jurists could conclude the issues presented are ade quate to deserve encouragement to proceed further.” Miller-El , 537 U.S. at 327. When a district court has dismissed a habeas petition on procedural grounds, we may only issue a COA when “jurists of reason would find it debatable whe ther the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Based on our review of the record on appeal, the district court’s order, a nd Mr. Tafoya’s submissions to this court, we do not think jurists of reason woulddisagree with the district court that Mr. Tafoya neither satisfied the requirements for statutory tolling under § 2255(4), nor presented “rare and exceptional circum stances” warranting equitable tolling of the AEDPA limitations. Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000). Accordingly, we DENY Mr. Tafoya’s request for a COA and DISMISS the appeal.
ENTERED FOR THE COURT-5- Stephanie K. Seymour Circuit Judge