Rios v. Ensey

── Rios v. Ensey ── Court: Court of Appeals for the Tenth Circuit Date: May 04, 2026 Category: General 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as a habitual offender under state law and seeking the appointment of counsel to assist him. 1 After * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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