FILED

United States Court of Appeals

Tenth Circuit

May 24, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULIO ONTIVEROS-PEREZ, 

Petitioner–Appellant, No. 12-1074

v. (D.C. No. 1:11-CV-02598-LTB)

ANGEL MEDINA, Warden; THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

(D. Colorado)

Respondents–Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, Chief Judge, McKAY, and HOLMES, Circuit Judges.

Petitioner, a Colorado state prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2254 habeas petition. In 2007,

Petitioner pled guilty to six counts of aggravated robbery, one count of attempted

aggravated robbery, and one count of menacing. He was sentenced to consecutive sixyear sentences for each of the aggravated robbery counts and a consecutive five-year

sentence for the attempted aggravated robbery count, for a total aggregate sentence of

forty-one years. Petitioner did not appeal his sentence, but instead filed a Colo. R. Crim.

*

 This order is not binding precedent except under the doctrines of law of the case,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.
P. 35(b) motion for reconsideration of sentence. This motion was denied, and Petitioner

did not appeal the denial of the motion. More than a year and a half later, Petitioner filed

a Colo. R. Crim. P. 35(c) motion for post-conviction relief, in which he claimed his guilty

plea was involuntary because he did not understand he could receive consecutive

sentences for each of the aggravated robbery charges. The trial court concluded, and the

Colorado Court of Appeals agreed, that this contention was refuted by the record, which

showed that Petitioner was advised of the possibility of consecutive sentences at his

providency hearing and in both English and Spanish provisions in his plea agreement. 

After the Colorado Supreme Court denied certiorari, Petitioner filed the instant

federal habeas petition, in which he again claimed his plea was involuntary because he

was informed the sentences imposed in this case would be concurrent. The district court

dismissed the petition as untimely, concluding that it was filed outside the one-year

statute of limitations and that Petitioner had not shown extraordinary circumstances

warranting equitable tolling. 

In his request for a certificate of appealability, Petitioner does not dispute his

petition was filed outside the one-year statute of limitations. However, he contends the

district court should have equitably tolled his untimely claims because his delay in filing

was caused by his ignorance of the law, his inability to speak English, the prison law

library’s complete lack of legal materials in Spanish, and the fact he did not have an

attorney to represent him in the state post-conviction proceeding.

After thoroughly reviewing the record and Petitioner’s filings on appeal, we

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conclude that reasonable jurists would not debate the district court’s dismissal of the

habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Under our precedents, Petitioner has simply not demonstrated extraordinary

circumstances warranting equitable tolling. See Yang v. Archuleta, 525 F.3d 925, 929-30

(10th Cir. 2008); Fleming v. Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007); Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Therefore, for substantially the same

reasons given by the district court, we DENY Petitioner’s request for a certificate of

appealability and DISMISS the appeal. Petitioner’s motion for leave to proceed in forma

pauperis is GRANTED.

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge

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