Rios v. Ensey

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 4, 2026
• Docket: 25-1368
• Status: Unpublished

Opinion

Appellate Case: 25-1368 Document: 13-1 Date Filed: 05/04/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 4, 2026 _________________________________ Christopher M. Wolpert Clerk of Court PAUL ANTHONY RIOS,

Petitioner - Appellant, No. 25-1368 v. (D.C. No. 1:25-CV-01184-LTB-RTG) (D. Colo.) MR. ENSEY, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _________________________________

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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 1 Appellate Case: 25-1368 Document: 13-1 Date Filed: 05/04/2026 Page: 2

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.”). 2 Appellate Case: 25-1368 Document: 13-1 Date Filed: 05/04/2026 Page: 3

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