F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 10 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
DESI GALLEGOS,
Petitioner-Appellant, No. 04-1352
v. (D.C. No. 04-Z-1198)
CARL ZENON, Warden, A.V.C.F.; (D. Colo.)
JOE ORTIZ, Executive Director,
Colorado Department of Corrections;
and KEN SALAZAR, Attorney
General of the State of Colorado,
Respondents-Appellees.
ORDER
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
This is a pro se 28 U.S.C. § 2254 prisoner appeal. Mr. Gallegos is a
prisoner in the custody of the Colorado Department of Corrections. He
challenges his August 27, 1997, Colorado state court conviction for vehicular
homicide. Mr. Gallegos filed his federal petition on June 3, 2004. The magistrate
judge subsequently ordered Mr. Gallegos to show cause within thirty days why the
application should not be denied as time-barred pursuant to 28 U.S.C. § 2244(d).
Following submission of a response, the district court dismissed the action as
time-barred. This appeal followed.
The district court denied Mr. Gallegos’s application for a certificate of
appealability and his request to proceed in forma pauperis. He then applied to
this court for a certificate of appealability and renewed his application to proceed
in forma pauperis.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2) (2000). To do so, Petitioner must demonstrate “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s brief raises an issue that meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
district court in its Order of August 20, 2004, we cannot say “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. Appellant’s motion to proceed in forma pauperis on appeal
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is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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