F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GONZALO GOMEZ OLIVAS,
Petitioner - Appellant,
v. No. 06-1302
(D. Ct. No. 06-CV-00935-ZLW)
STATE OF COLORADO; CARLYLE (D. Colo.)
HOLDER, Warden; and THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Gonzalo Gomez Olivas, a federal prisoner appearing pro se, seeks a certificate of
appealability (“COA”) in order to challenge the District Court’s denial of his 28 U.S.C. §
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
2254 habeas petition. Our jurisdiction arises under 28 U.S.C. § 2253(c)(1), and because
Mr. Olivas has failed to make “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we DENY a COA and DISMISS his appeal.
I. BACKGROUND
Mr. Olivas is currently a federal prisoner in the custody of the United States
Bureau of Prisons. In 1990 and 1992, prior to his federal conviction, Mr. Olivas pleaded
guilty to three separate state crimes in the Larimer County District Court in Colorado.
Mr. Olivas completed his sentences in all three cases. Thereafter, Mr. Olivas was
convicted of conspiracy to possess with intent to distribute and distribution of cocaine and
marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He was
subsequently sentenced to 30 years’ imprisonment based, in part, on his prior state
convictions.
Mr. Olivas filed a petition for habeas corpus in the United States District Court for
the District of Colorado under 28 U.S.C. § 2254, challenging the constitutionality of the
three prior Colorado state court convictions that were used to enhance his current federal
sentence. Mr. Olivas argued that the state court entered each of his guilty pleas in
violation of his due process rights. The District Court denied the petition and Mr.
Olivas’s subsequent request for a COA. Mr. Olivas now seeks a COA from this Court to
challenge the District Court’s denial of his habeas petition.
II. DISCUSSION
The District Court properly held that Mr. Olivas may not use § 2254 to collaterally
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attack his expired state convictions. A prisoner may apply for habeas relief under § 2254
only when the habeas applicant is in custody “pursuant to the judgment of a State court.”
28 U.S.C. § 2254(a). Although a prisoner serving a sentence enhanced by prior state
convictions is “in custody” for purposes of § 2254, once a state conviction is no longer
open to direct or collateral attack in its own right, a prisoner may challenge the state
conviction under § 2254 in only two narrow circumstances: (1) when there was a failure
to appoint counsel in the prior conviction or (2) in the “rare case” where the defendant
cannot be faulted for failing to obtain timely review. See Lackawanna County Dist.
Attorney v. Coss, 532 U.S. 394, 403–05 (2001).
Mr. Olivas does not allege facts that satisfy either exception. He does not suggest
that the state courts denied him his Sixth Amendment right to counsel. Nor does he
suggest that he was faultless for failing to obtain timely review of his claims. That
exception applies in the rare instance that, for example, the state court refuses, without
justification, to rule on a properly presented constitutional claim or when the habeas
applicant obtains evidence of actual innocence after the time for direct or collateral
review has expired. See id. at 405. Though Mr. Olivas contends that the Larimer County
District Court failed to rule on his petition for a writ of habeas corpus, the record reveals
that he did not file that petition until March 2005. Mr. Olivas’s only suggestion as to why
he failed to file a timely petition is that he only “recently discovered” the alleged
constitutional deficiencies. This is not sufficient to satisfy the Lakawanna exception. See
Davis v. Roberts, 425 F.3d 830, 836 (10th Cir. 2005) (“[I]gnorance of the law, even for an
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incarcerated pro se petitioner, generally does not excuse prompt filing.” (quotation
omitted)). Finally, Mr. Olivas does not proffer evidence of actual innocence.
Accordingly, the District Court properly dismissed the § 2254 claim.
Mr. Olivas also requests to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. We deny this request for the same reasons stated by the District Court.
III. CONCLUSION
We have carefully reviewed Mr. Olivas’s claims and the record. For the foregoing
reasons, we DENY his application for a COA, DENY his application to proceed in forma
pauperis, and DISMISS his appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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