Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court CARLOS TOVAR-MENDOZA,
Petitioner - Appellant,
v. No. 23-2186 (D.C. No. 2:18-CV-00982-KWR-LF) RICHARDO MARTINEZ; ATTORNEY (D. N.M.) GENERAL OF THE STATE OF NEW MEXICO,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Carlos Tovar-Mendoza, a New Mexico state prisoner, seeks a certificate of
appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C.
§ 2254 petition. For the reasons outlined below, we deny his request for a COA and
dismiss the matter.
I
In the fall of 2002, two separate criminal cases were filed against Mr. Tovar-
Mendoza in New Mexico state court. Mr. Tovar-Mendoza entered into a combined plea
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 2
agreement pursuant to which he pleaded no contest to second-degree kidnapping, two
counts of second-degree criminal sexual penetration, and third-degree aggravated battery
against a household member. Mr. Tovar-Mendoza was subsequently sentenced to a term
of imprisonment of 30 years, with 5 years suspended, plus a 5-year term of supervised
probation.
Mr. Tovar-Mendoza unsuccessfully sought post-conviction relief in the New
Mexico state courts. He then, in December 2005, filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Although the district court denied the petition, Mr.
Tovar-Mendoza appealed and we reversed the judgment of the district court and
remanded with instructions to conditionally grant the petition, subject to the State of New
Mexico allowing Mr. Tovar-Mendoza to withdraw his no contest plea and proceed on the
criminal charges against him. Tovar Mendoza v. Hatch, 620 F.3d 1261, 1263, 1272
(10th Cir. 2010).
Mr. Tovar-Mendoza was retried in state court in November 2011. The jury
convicted him of kidnapping, two counts of criminal sexual penetration, and aggravated
battery against a household member. Mr. Tovar-Mendoza was sentenced to a term of
imprisonment of 33 years, with 8 years suspended, to be followed by parole for 5 years to
life, and supervised probation for a term of 5 to 20 years. The State subsequently filed a
supplemental information seeking to enhance Mr. Tovar-Mendoza’s sentence under New
Mexico’s habitual offender statute. The trial court, after conducting a hearing on the
matter, enhanced Mr. Tovar-Mendoza’s sentence by one year.
2 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 3
Mr. Tovar-Mendoza appealed. The New Mexico Court of Appeals affirmed his
convictions and sentence. He did not file a petition for writ of certiorari with the New
Mexico Supreme Court. His criminal judgment therefore became final on May 1, 2013.
Slightly less than a year later, Mr. Tovar-Mendoza filed a petition for state habeas
relief. That petition was denied in June 2016. Mr. Tovar-Mendoza filed a petition for
writ of certiorari with the New Mexico Supreme Court. That petition was denied in
February 2017.
In November 2017, Mr. Tovar-Mendoza filed a second petition for state habeas
relief. In March 2018, the state district court granted in part and dismissed in part the
second petition. In doing so, the state district court concluded that the terms of parole
and probation that were imposed on Mr. Tovar-Mendoza exceeded the applicable limits
under New Mexico law. The state district court therefore issued an amended judgment
reflecting that Mr. Tovar-Mendoza would serve a 5-year term of probation and a 2-year
period of parole. Mr. Tovar-Mendoza then filed a petition for writ of certiorari with the
New Mexico Supreme Court. In May 2018, the New Mexico Supreme Court denied the
petition.
In October 2018, Mr. Tovar-Mendoza filed a pro se petition for federal habeas
relief pursuant to 28 U.S.C. § 2254. In March 2020, the district court dismissed the
petition as untimely. Mr. Tovar-Mendoza subsequently filed a series of motions,
supplements, and notices seeking relief from the district court’s dismissal order. The
district court struck all of these post-judgment filings and directed Mr. Tovar-Mendoza to
file a single motion for relief from judgment. In October 2021, Mr. Tovar-Mendoza,
3 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 4
represented by counsel, filed a consolidated Rule 60 motion and a motion for leave to file
a supplementary affidavit. The district court granted the motions in part and reopened the
case.
Mr. Tovar-Mendoza did not dispute that the one-year limitations period for filing
his § 2254 petition had expired, but he argued in his Rule 60 motion that he was entitled
to equitable tolling of the one-year limitations period for two reasons: (1) his English
language skills were insufficient to allow him to understand the applicable statute of
limitations; and (2) ineffective assistance of counsel caused him to miss the filing
deadline.
The magistrate judge assigned to the case issued proposed findings and a
recommended disposition. The magistrate judge concluded that Mr. Tovar-Mendoza’s
petition was untimely and that he failed to present extraordinary circumstances that
would warrant equitable tolling. The magistrate judge also concluded that even if the
petition was timely, it would fail on the merits. The magistrate judge therefore
recommended that the district court deny Mr. Tovar-Mendoza’s Rule 60 motion and
dismiss the case with prejudice.
Mr. Tovar-Mendoza filed written objections to the magistrate judge’s
recommended disposition. In doing so, however, he did not address the magistrate
judge’s conclusion that he failed to act diligently in pursuing his available remedies. Nor
did he address the magistrate judge’s conclusion that his claims lacked merit.
On October 20, 2023, the district court issued a memorandum opinion and order
overruling Mr. Tovar-Mendoza’s objections and adopting in part the magistrate judge’s
4 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 5
recommended disposition. The district court concluded that it could deny the petition
solely on the grounds that Mr. Tovar-Mendoza failed to object to the magistrate judge’s
conclusions that he failed to act diligently in pursuing his claims and that his claims
lacked merit. The district court also concluded, in the alternative, that Mr. Tovar-
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court CARLOS TOVAR-MENDOZA,
Petitioner - Appellant,
v. No. 23-2186 (D.C. No. 2:18-CV-00982-KWR-LF) RICHARDO MARTINEZ; ATTORNEY (D. N.M.) GENERAL OF THE STATE OF NEW MEXICO,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Carlos Tovar-Mendoza, a New Mexico state prisoner, seeks a certificate of
appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C.
§ 2254 petition. For the reasons outlined below, we deny his request for a COA and
dismiss the matter.
I
In the fall of 2002, two separate criminal cases were filed against Mr. Tovar-
Mendoza in New Mexico state court. Mr. Tovar-Mendoza entered into a combined plea
* 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. Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 2
agreement pursuant to which he pleaded no contest to second-degree kidnapping, two
counts of second-degree criminal sexual penetration, and third-degree aggravated battery
against a household member. Mr. Tovar-Mendoza was subsequently sentenced to a term
of imprisonment of 30 years, with 5 years suspended, plus a 5-year term of supervised
probation.
Mr. Tovar-Mendoza unsuccessfully sought post-conviction relief in the New
Mexico state courts. He then, in December 2005, filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Although the district court denied the petition, Mr.
Tovar-Mendoza appealed and we reversed the judgment of the district court and
remanded with instructions to conditionally grant the petition, subject to the State of New
Mexico allowing Mr. Tovar-Mendoza to withdraw his no contest plea and proceed on the
criminal charges against him. Tovar Mendoza v. Hatch, 620 F.3d 1261, 1263, 1272
(10th Cir. 2010).
Mr. Tovar-Mendoza was retried in state court in November 2011. The jury
convicted him of kidnapping, two counts of criminal sexual penetration, and aggravated
battery against a household member. Mr. Tovar-Mendoza was sentenced to a term of
imprisonment of 33 years, with 8 years suspended, to be followed by parole for 5 years to
life, and supervised probation for a term of 5 to 20 years. The State subsequently filed a
supplemental information seeking to enhance Mr. Tovar-Mendoza’s sentence under New
Mexico’s habitual offender statute. The trial court, after conducting a hearing on the
matter, enhanced Mr. Tovar-Mendoza’s sentence by one year.
2 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 3
Mr. Tovar-Mendoza appealed. The New Mexico Court of Appeals affirmed his
convictions and sentence. He did not file a petition for writ of certiorari with the New
Mexico Supreme Court. His criminal judgment therefore became final on May 1, 2013.
Slightly less than a year later, Mr. Tovar-Mendoza filed a petition for state habeas
relief. That petition was denied in June 2016. Mr. Tovar-Mendoza filed a petition for
writ of certiorari with the New Mexico Supreme Court. That petition was denied in
February 2017.
In November 2017, Mr. Tovar-Mendoza filed a second petition for state habeas
relief. In March 2018, the state district court granted in part and dismissed in part the
second petition. In doing so, the state district court concluded that the terms of parole
and probation that were imposed on Mr. Tovar-Mendoza exceeded the applicable limits
under New Mexico law. The state district court therefore issued an amended judgment
reflecting that Mr. Tovar-Mendoza would serve a 5-year term of probation and a 2-year
period of parole. Mr. Tovar-Mendoza then filed a petition for writ of certiorari with the
New Mexico Supreme Court. In May 2018, the New Mexico Supreme Court denied the
petition.
In October 2018, Mr. Tovar-Mendoza filed a pro se petition for federal habeas
relief pursuant to 28 U.S.C. § 2254. In March 2020, the district court dismissed the
petition as untimely. Mr. Tovar-Mendoza subsequently filed a series of motions,
supplements, and notices seeking relief from the district court’s dismissal order. The
district court struck all of these post-judgment filings and directed Mr. Tovar-Mendoza to
file a single motion for relief from judgment. In October 2021, Mr. Tovar-Mendoza,
3 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 4
represented by counsel, filed a consolidated Rule 60 motion and a motion for leave to file
a supplementary affidavit. The district court granted the motions in part and reopened the
case.
Mr. Tovar-Mendoza did not dispute that the one-year limitations period for filing
his § 2254 petition had expired, but he argued in his Rule 60 motion that he was entitled
to equitable tolling of the one-year limitations period for two reasons: (1) his English
language skills were insufficient to allow him to understand the applicable statute of
limitations; and (2) ineffective assistance of counsel caused him to miss the filing
deadline.
The magistrate judge assigned to the case issued proposed findings and a
recommended disposition. The magistrate judge concluded that Mr. Tovar-Mendoza’s
petition was untimely and that he failed to present extraordinary circumstances that
would warrant equitable tolling. The magistrate judge also concluded that even if the
petition was timely, it would fail on the merits. The magistrate judge therefore
recommended that the district court deny Mr. Tovar-Mendoza’s Rule 60 motion and
dismiss the case with prejudice.
Mr. Tovar-Mendoza filed written objections to the magistrate judge’s
recommended disposition. In doing so, however, he did not address the magistrate
judge’s conclusion that he failed to act diligently in pursuing his available remedies. Nor
did he address the magistrate judge’s conclusion that his claims lacked merit.
On October 20, 2023, the district court issued a memorandum opinion and order
overruling Mr. Tovar-Mendoza’s objections and adopting in part the magistrate judge’s
4 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 5
recommended disposition. The district court concluded that it could deny the petition
solely on the grounds that Mr. Tovar-Mendoza failed to object to the magistrate judge’s
conclusions that he failed to act diligently in pursuing his claims and that his claims
lacked merit. The district court also concluded, in the alternative, that Mr. Tovar-
Mendoza failed to establish his entitlement to equitable tolling and, in any event, was not
entitled to federal habeas relief. The district court therefore denied the petition,
dismissed the case, and denied Mr. Tovar-Mendoza a COA.
Mr. Tovar-Mendoza now seeks a COA from this court.
II
To receive a COA, Mr. Tovar-Mendoza must make a “substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting
28 U.S.C. § 2253(c)(2)). Because the district court denied Mr. Tovar-Mendoza’s habeas
petition on procedural grounds, that means that, in order to obtain a COA, Mr. Tovar-
Mendoza must show, “at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right, and that 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).
Notably, Mr. Tovar-Mendoza makes no attempt to satisfy the first of these
requirements. For that reason alone, he has failed to establish his entitlement to a COA.
But even if we were to assume he could satisfy the first requirement, he has also
failed to satisfy the second requirement. It is beyond dispute that a one-year limitations
period applies to applications for federal habeas relief filed by state prisoners. 28 U.S.C.
5 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 6
§ 2244(d)(1). It is also undisputed that Mr. Tovar-Mendoza did not meet this
requirement. Therefore, Mr. Tovar-Mendoza was left to establish his entitlement to
equitable tolling. Generally, equitable tolling requires a litigant to prove two elements:
(1) that he has been pursuing his rights diligently; and (2) that some extraordinary
circumstance stood in his way. Lawrence v. Florida, 549 U.S. 327, 336 (2007). The
district court concluded that Mr. Tovar-Mendoza failed to establish either element.
Although Mr. Tovar-Mendoza takes issue with the district court’s conclusion that
he was not entitled to equitable tolling, we conclude he has failed to demonstrate that
jurists of reason would find the district court’s procedural ruling debatable. To begin
with, Mr. Tovar-Mendoza fails to specify the particular time periods that should be tolled.
Further, he fails to establish that he acted diligently in pursuing his claims in state court.
Moreover, as the district court noted, Mr. Tovar-Mendoza failed to present any evidence
that he asked his counsel to file a federal habeas petition or that his counsel
misrepresented to him that he would file one. Therefore, there is no basis in the record to
conclude that his failure to timely file his federal habeas petition was the result of
ineffective assistance of counsel. Finally, Mr. Tovar-Mendoza’s purported lack of
understanding of the English language does not qualify as an extraordinary circumstance
that would justify equitable tolling. See Yang v. Archuleta, 525 F.3d 925, 929–30 (10th
Cir. 2008) (concluding that petitioner’s limited proficiency in English did not constitute
an extraordinary circumstance that justified equitable tolling of the one-year limitations
period).
6 Appellate Case: 23-2186 Document: 010111078083 Date Filed: 07/11/2024 Page: 7
III
We deny Mr. Tovar-Mendoza’s request for COA and dismiss the matter.
Entered for the Court
Mary Beck Briscoe Circuit Judge