Paul Anthony Rios v. MR. ENSEY, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO

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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
PAUL ANTHONY RIOS,
Petitioner - Appellant,
v.
MR. ENSEY, Warden; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
No. 25-1368
(D.C. No. 1:25-CV-01184-LTB-RTG)
(D. Colo.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BALDOCK, and MURPHY, Circuit Judges.
_________________________________
In 2012, Petitioner Paul Anthony Rios was convicted in Colorado state court of
aggravated robbery, felony menacing, and misdemeanor theft. The court adjudicated
Petitioner a habitual offender under state law and sentenced him to 64 years’ imprisonment.
In 2025, Petitioner, appearing pro se, filed a federal habeas petition under 28 U.S.C. § 2254
in the federal district court challenging the constitutionality of his status as a habitual
offender under state law and seeking the appointment of counsel to assist him.1 After
* This order is not binding precedent except under the doctrines of law of the case,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.
1 We note here that the right to appointed counsel extends to a first appeal as of
right following conviction, “and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555
FILED
United States Court of Appeals
Tenth Circuit
May 4, 2026
Christopher M. Wolpert
Clerk of Court
Appellate Case: 25-1368 Document: 13-1 Date Filed: 05/04/2026 Page: 1

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excluding the time periods during which Petitioner’s various unsuccessful applications for
state post-conviction relief were pending, 28 U.S.C. § 2244(d)(2), a United States
Magistrate Judge concluded that Petitioner’s § 2254 petition was time-barred under
§ 2244(d)(1)’s one-year limitations’ period and that Petitioner had not met his burden of
demonstrating the circumstances warranted equitable tolling. Accordingly, the magistrate
judge recommended the district court dismiss the petition as untimely. Petitioner objected
to the magistrate judge’s recommendation, stating only that he should not be held
accountable for submitting his petition out of time because of a “short staff[].” The district
court adopted the recommendation over Petitioner’s objection and dismissed the petition
with prejudice. The court further ordered the certificate of appealability (COA) required
for an appeal would not issue. Id. § 2253(c). Finally, the court denied Petitioner’s motion
for leave to proceed on appeal in forma pauperis and certified that any appeal from the
petition’s dismissal would not be taken in good faith. Id. § 1915(a).
Presently before us is Petitioner’s opening brief which, for present purposes, we also
construe as a renewed application for a COA. Because the district court dismissed his
§ 2254 petition on procedural grounds, Petitioner is entitled to a COA only if he shows
reasonable jurists would find it debatable whether he states a valid claim of the denial of a
constitutional right and those same jurists would find it debatable whether the district court
was correct in its procedural ruling. Cole v. Farris, 54 F.4th 1174, 1182–83 (10th Cir.
2022). But Petitioner’s COA application, construed liberally, does not address the
(1987); see also Herd v. Tapia, 356 Fed. Appx. 140, 143 (10th Cir. 2009) (unpublished)
(“[T]here is no right to counsel in collateral proceedings.”).
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timeliness of his § 2254 petition. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”). This omission includes the lack of
any attempt on the part of Petitioner to meet his “burden to show specific facts” establishing
the extraordinary circumstances and due diligence necessary to justify equitable tolling.
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). Petitioner instead identifies the
issues in his application as whether the state courts erroneously denied (1) his various
applications for post-conviction relief based on an allegedly unlawfulness sentence, and
(2) his motion for the appointment of counsel to assist him in pursuing state post-conviction
relief. We need not belabor this matter further. Petitioner has not met his burden of
showing reasonable jurists would find it debatable whether the district court was correct in
its procedural ruling that his § 2254 petition is time-barred.
Accordingly, Petitioner’s motion for a COA is DENIED. Petitioner’s motion to
proceed on appeal IFP is GRANTED. Petitioner’s motion for the appointment of counsel
is DENIED AS MOOT.
APPEAL DISMISSED.
Entered for the Court
Bobby R. Baldock
United State Circuit Judge
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