*

This order is not binding precedent except under the doctrines of law of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

April 29, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-1506

v. (D. Colorado)

ELADIO BELTRAN-LOPEZ, a/k/a

Eladio Lopez Beltran,

Defendant - Appellant.

(D.C. Nos. 1:09-CV-00839-WYD and

1:06-CR-00209-WYD-1)

ORDER DENYING

CERTIFICATE OF APPEALABILITY*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

Defendant and appellant, Eladio Beltran-Lopez, a federal prisoner

proceeding pro se, seeks a certificate of appealability (“COA”) to enable him to

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appeal the denial of his motion which the district court construed as a 28 U.S.C.

§ 2255 petition to vacate, set aside or correct his sentence and conviction. We

deny Mr. Beltran-Lopez’s request for a COA and dismiss this matter.

Mr. Beltran-Lopez was convicted by a jury of unlawfully reentering the

United States after having been deported previously following a conviction for an

aggravated felony. He was accordingly sentenced on November 30, 2006, to 125

months’ imprisonment. Our court affirmed his sentence. United States v.

Beltran-Lopez, 252 Fed. Appx. 928 (10th Cir. Oct. 31, 2007). The Supreme Court

denied his petition for a writ of certiorari on February 19, 2008.

On February 24, 2009, Mr. Beltran-Lopez filed a pleading pro se, which the

district court liberally construed as a § 2255 motion challenging his sentence. On

March 2, 2009, the district court ordered Mr. Beltran-Lopez to cure a deficiency

in his case by filing an amended § 2255 motion within thirty days on the proper,

court-approved form. Mr. Beltran-Lopez failed to cure the designated deficiency

within the time stipulated, or to communicate with the court in any other manner. 

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1

Section 2255 provides in pertinent part as follows:

A 1-year period of limitation shall apply to a motion under this

section. The limitation period shall run from the latest of–

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by governmental action in violation of

the Constitution or laws of the United States is removed,

if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2255(f). 

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The district court found Mr. Beltran-Lopez’s § 2255 petition time-barred by

the one-year statute of limitations applicable to § 2255 motions.1

 As the court

explained:

The judgment of conviction in this criminal action became

final on February 19, 2008, when the United States Supreme Court

denied Mr. Beltran-Lopez’s petition for writ of certiorari on direct

appeal. Mr. Beltran-Lopez does not allege that he was prevented by

unconstitutional governmental action from filing the instant motion

sooner, he is not asserting any rights newly recognized by the

Supreme Court and made retroactively applicable to cases on

collateral review, and the facts supporting his claims were or could

have been discovered at the time he was convicted and during the

course of his direct appeal. Therefore, I find that the one-year

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limitation period began to run on February 19, 2008, when the

judgment of conviction became final.

Order at 2, R. Vol. 1 at 37 (citations omitted). As a result, Mr. Beltran-Lopez’s

petition, filed on February 24, 2009, was filed more than one year after the date

(February 19, 2008) when his conviction became final. Although the court noted

that the doctrine of equitable tolling does apply to § 2255 motions, the court

concluded that there was no basis on which to toll the statute of limitations in this

case. Accordingly, the court dismissed the matter. The district court

subsequently denied Mr. Beltran-Lopez’s motion for reconsideration. The court

did not grant a COA on any issue, and it did not rule on whether Mr. BeltranLopez could proceed on appeal in forma pauperis.

The issuance of a COA is jurisdictional. We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. 2253(c)(2). To make this showing, Mr. Beltran-Lopez must

demonstrate “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2002). Where the district court has

rejected a claim on its merits, the “petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. When the district court dismisses a petition on

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procedural grounds, the applicant must not only make a substantial showing of the

denial of a constitutional right; he must also demonstrate that the district court’s

“dismissal on procedural grounds was debatable or incorrect.” Id. at 485. 

“Where a plain procedural bar is present and the district court is correct to invoke

it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should not be

allowed to proceed further.” Id. at 484.

In this case, there was a clear and dispositive procedural rule upon which

the district court relied to dispose of this case. No reasonable jurist could

question the propriety of the district court’s dismissal of this case. While

Mr. Beltran-Lopez asks us to excuse his failure to follow the relevant rule

because he is proceeding pro se, we cannot do that. Although a pro se litigant’s

pleadings and filings are interpreted liberally, “[t]his court has repeatedly insisted

that pro se parties ‘follow the same rules of procedure that govern other

litigants.’” Nielsen v. Price, 17 F. 3d 1276, 1277 (10th Cir. 1994) (quoting Green

v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)). We therefore deny Mr. BeltranLopez a COA, and dismiss this matter.

Because we have determined that no jurists of reason would find it

debatable whether the district court was correct in denying Mr. Beltran-Lopez’s

§ 2255 petition, we DENY his application for a COA and DISMISS this matter. 

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We also DENY Mr. Beltran-Lopez permission to proceed on appeal in forma

pauperis.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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