Mercado v. Williams, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
PEDRO MERCADO,

Petitioner - Appellant,

v.

DEAN WILLIAMS, Exec. Director,
C.D.O.C; THE ATTORNEY GENERAL
OF THE STATE OF COLORADO,

Respondents - Appellees.

No. 20-1108
(D.C. No. 1:19-CV-03056-LTB-GPG)
(D. Colo.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
*

_________________________________
Before MATHESON, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Petitioner Pedro Mercado, a Colorado state prisoner proceeding pro se, filed a
habeas petition under 28 U.S.C. § 2254 in the District of Colorado. Therein, he alleged:
(1) “denial of [the] right to confront witness[es] against [him] and of fair trial” in violation
of the Sixth and Fourteenth Amendments; (2) ineffective assistance of trial counsel; and
(3) ineffective assistance of direct appeal counsel. The action was referred to Magistrate
Judge Gallagher pursuant to 28 U.S.C. § 636(b). Thereafter, Magistrate Judge Gallagher
entered a report and recommendation which concluded Mr. Mercado’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This order is not binding precedent except under the doctrines of law of the case,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 Court
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untimely. Magistrate Judge Gallagher further 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 recommendation, 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 constitutional claims, a COA will issue when the
petitioner shows “jurists of reason would find 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 was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 478 (2000). The petitioner must satisfy both parts of this
threshold inquiry before we will hear the merits of the appeal. Gibson v. Klinger, 232 F.3d
799, 802 (10th Cir. 2000).
For the reasons explained below, no reasonable 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 statutory or equitable tolling. Therefore,
exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Mercado’s
application for a COA and dismiss this appeal.
* * *
A petitioner must generally seek habeas relief within one year from “the date on
which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review[.]” 28 U.S.C. §.2244(d)(1)(A). The one-year limitation
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period will be tolled during the time in which “a properly filed application for State post-
conviction or other collateral review” 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. Mercado’s habeas application is
untimely unless he is entitled to equitable tolling.
The one-year limitation period prescribed by 28 U.S.C. § 2244(d) is not
jurisdictional and may be tolled for equitable 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 petitioner 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 pleading during the statutory period. Gibson, 232 F.3d at
808. In each of these cases, the petitioner must show he diligently pursued his federal
habeas claims. Id. Excusable neglect is insufficient to support equitable tolling. Id.
Here, Mr. Mercado argues he is entitled to equitable tolling because “direct appeal
counsel did not notify [him] 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 know the one-year limitation period was running (or had expired).
Mr. Mercado’s claim is without merit.
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In a state court evidentiary hearing, appellate 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 only does Mr. Mercado fail to
present any evidence to the contrary—the evidence actually supports the state court’s
conclusion that Mr. Mercado knew his direct appeal had ended. As Magistrate Judge
Gallagher recognized in his report and recommendation, Mr. Mercado sought an extension
of time to file for state post-conviction relief on October 10, 2012. By filing that motion
for an extension of time, Mr. Mercado necessarily realized that Colorado had concluded its
direct review of his conviction. And yet, Mr. Mercado did not 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 are time-barred, and he is not eligible for
equitable tolling. We therefore deny his application 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
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