FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 18, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ROMAN M. PADILLA,
Plaintiff - Appellant, No. 07-2262
v. D. N.M.
TIMOTHY HATCH; ATTORNEY (D.C. No. CIV-07-00540-MV-RHS)
GENERAL OF THE STATE OF NEW
MEXICO,
Defendant - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Appearing pro se 1 and in forma pauperis, Roman Padilla seeks a certificate
of appealability (COA) to appeal from the dismissal of his petition for a writ of
We liberally construe pro se pleadings. See Ledbetter v. City of Topeka,
1
Kan., 317 F.3d 1183, 1187 (10th Cir. 2003)
habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the
petition as time-barred and denied a COA. We likewise deny a COA and dismiss
the application.
Padilla, a prisoner in state custody, filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The magistrate judge determined Padilla’s
application was not filed within the one year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
2244(d)(1)(A). 2 The judge rejected Padilla’s argument that the statute of
limitations should be equitably tolled because he was unaware of any time limit.
The district court adopted the magistrate judge’s recommendations and denied the
petition. Padilla filed a timely notice of appeal and request for a COA. The
district court denied a COA and Padilla renews his request here.
A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,
537 U.S. 322, 325-26 (2003). It will issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
2
As set forth by the magistrate judge, Padilla’s state court judgment was
entered on March 15, 2005. Padilla filed a motion to reconsider sentence on
March 23, 2005, which was denied on April 8, 2005. Because he did not pursue a
direct appeal, his conviction became final thirty days later, on May 9, 2005. N.M.
Stat. Ann. § 39-3-9; 28 U.S.C. § 2244(d)(1)(A). Thus, to be timely, his habeas
corpus petition would have to have been filed by May 10, 2006. See United
States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003). It was not filed until
May 31, 2007. Although Padilla also filed a petition for post-conviction relief in
state court, it was not filed until after the statute of limitations had already
expired. Thus, it did not toll the statute of limitations under 28 U.S.C.
§ 2244(d)(2).
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§ 2253(c)(2). This standard requires an applicant to show “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). Where, as here, an application is denied on
procedural grounds, the applicant must also show “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id.
“Where a plain procedural bar is present and the district court is correct to invoke
it to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.
In his application for a COA and proposed opening brief, Padilla does not
challenge the district court’s conclusion that his petition is untimely and does not
claim he is entitled to equitable tolling. Instead, he argues the merits of his
claims. We need not consider the merits as a plain procedural bar is present and
the district court was correct to invoke it. See id.
We DENY a COA and DISMISS the application.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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