UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ PEDRO MERCADO, Petitioner - Appellant,

v. DEAN WILLIAMS, Exec. Director, C.D.O.C; THE AT TORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 20-1108 (D.C. No. 1:19-CV -03056-LTB-GPG) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MATHESON , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Petitioner Pedro Mercado, a Colorado st ate prisoner proceeding pro se, filed a habeas petition under 28 U. S.C. § 2254 in the District of Colorado. Therei n, he alleged: (1) “denial of [the] right to confront witness[es ] against [him] and of fa ir trial” in violation of the Sixth and Fourteenth Amendments; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of direct appeal co unsel. The action was referred to Magistrate Judge Gallagher pursuant to 28 U.S.C. § 636( b). Thereafter, Magistrate Judge Gallagher entered a report and recommend ation which concluded Mr. Me rcado’s habeas petition is

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### December 18, 2020 Christopher M. Wolpert Clerk of Court2 untimely. Magistrate Judge Gallagher furt her found Mr. Mercado is not eligible for equitable tolling and recommended the habeas petition be dismissed. After overruling Mr. Mercado’s objections to the report and recomme ndation, the district court adopted the recommendation in its entirety, dismissed the habeas petition as time-barred, and denied a certificate of appealability (“COA”). Now, Petitioner seeks a COA from this court. If the district court dismisses a habeas petition on procedural grounds without reaching the petitioner’s underlying constituti onal claims, a COA will issue when the petitioner shows “jurists of reason would fi nd it debatable whether the petition states a valid claim of the denial of a constitutional right” and “jurists of reason would find it debatable whether the district court wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). The petiti oner must satisfy both parts of this threshold inquiry before we will h ear the merits of the appeal. Gibson v. Klinger , 232 F.3d 799, 802 (10th Cir. 2000). For the reasons explained below, no reasonab le jurist could conclude the district court’s procedural ruling was incorrect. Mr. Mercado’s claims are untimely under 28 U.S.C. § 2244(d), and he is not entitled to st atutory or equitable tolling. Therefore, exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Mercado’s application for a COA a nd dismiss this appeal. * * * A petitioner must generally seek habeas re lief within one year from “the date on which the judgment became final by the conclusi on of direct review or the expiration of the time for seeking such review[.]” 28 U.S.C. §

. 2244(d)(1)(A). The one-year limitation3 period will be tolled during the time in which “a properly filed application for State postconviction or other collateral revi ew” is pending. 28 U.S.C. § 2244(d)(2). In this case, Mr. Mercado’s conviction became “final” on October 24, 2011, when the time to seek further direct review expired. See id. Mr. Mercado did not file a motion for post-conviction relief until January 4, 2013—approximately two months after the one-year limitation period expired on October 24, 2012. Accordingly, Mr. Merc ado’s habeas application is untimely unless he is entitle d to equitable tolling. The one-year limitation period prescrib ed by 28 U.S.C. § 2244(d) is not jurisdictional and may be tolled for equita ble reasons in “rare and exceptional” circumstances. See Burger v. Scott , 317 F.3d 1133, 1141 ( 10th Cir. 2003) (quoting Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000)). A petitione r may be entitled to equitable tolling if: (1) he is actually innocent; (2) an adversary’s conduct—or other uncontrollable circumstances—prevents him from timely filing; or (3) he actively pursues judicial remedies but files a defective pleadi ng during the statutory period. Gibson , 232 F.3d at 808. In each of these cases, the petitioner must show he diligentl y pursued his federal habeas claims. Id. Excusable neglect is insufficien t to support equitable tolling. Id. Here, Mr. Mercado argues he is entitled to equitable tolling because “direct appeal counsel did not notify [h im] when his conviction was affirmed on direct appeal . . . nor did counsel file a petition for writ of certiorari to the Colorado Supreme Court.” Mr. Mercado thus contends he did not kn ow the one-year limitation period was running (or had expired). Mr. Mercado’s claim is without merit.4 In a state court evidentiary hearing, appe llate counsel confirmed that Mr. Mercado was informed when his direct appeal concluded. The state court accepted this statement as true, and we are bound by the state court’s factual finding absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). Not on ly does Mr. Mercado fail to present any evidence to the contrary —the evidence actually su pports the state court’s conclusion that Mr. Mercado knew his direct appeal had ended. As Magistrate Judge Gallagher recognized in his report and recomm endation, Mr. Mercado sought an extension of time to file for state post-conviction relie f on October 10, 2012. By filing that motion for an extension of time, Mr. Mercado necessar ily realized that Colo rado had concluded its direct review of his conviction. And yet, Mr. Mercado did no t seek a similar extension of time to file for federal habeas relief. Given Mr. Mercado’s failure to diligently pursue his federal habeas claim, he is not entitled to equitable tolling. * * * For these reasons, no reasonable jurist could conclude the district court’s procedural ruling was incorrect. Mr. Mercado’s claims ar e time-barred, and he is not eligible for equitable tolling. We therefore deny his app lication for a COA and dismiss this appeal. Mr. Mercado’s motion to proceed in forma pauperis is granted.

Entered for the Court
Bobby R. Baldock Circuit Judge