## F I L E D United States Court of Appeals Tenth Circuit 

### October 21, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
MARCOS A. ROCHA,

Petitioner - Appellant, No. 05-1151
v. (D. Colorado) WILLIAM E. PRICE, Warden; ATTORNEY GENERAL OF THE STATE OF COLORADO; ROGER G. BILLOTTE, Assistant Attorney General, Respondents - Appellees. (D.C. No. 04-Z-2195)

ORDER
Before HARTZ , Circuit Judge, BARRETT, Senior Circuit Judge, and McCONNELL , Circuit Judge. Marco A. Rocha applied for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the application as untimely under 28 U.S.C. § 2244(d) and denied Mr. Rocha’s request for a Cert ificate of Appealability (COA). We agree with the district court and deny aCOA for substantially the

same reasons. I. BACKGROUND On October 6, 2004, Mr. Rocha filed a “Motion for P rocess Habeas Corpus,” which states that he had previously filed an application for habeas relief-2-

on March 15, 1994. A copy of the purported application was attached to the motion. The magistrate judge issued an order to cure defici ency, directing the clerk to send Mr. Rocha forms for a formal habeas application under 28 U.S.C. § 2254. On November 26, 2004, Mr. Rocha filed a fo rmal application for habeas relief. That application alleges that he was convi cted on February 19, 1992, of possession, distribution, and conspiracy to distrib ute less than 28 grams of cocaine, that a direct appeal was filed, and that h is conviction was affirmed on May 20, 1993. It also alleges that he filed an app lication for habeas relief on March 15, 1994, that he was subsequently ordered to cure a deficiency in that application, that he did so, and that no further ac tion was taken until he filed his “Motion for Process Habeas Corpus.” The applicatio n allegedly filed in 1994 contended that the trial court erred in (1) denying him the right to represent himself, (2) refusing to dismiss a conspiracy count , and (3) refusing to reopen the case after the defense had rested to permit him to retake the stand. It also alleges that the prosecutor made improper statements during closing arguments. His 2004 application raises the same claims. The magistrate judge issued an order to show cause why the application should not be dismissed as time-barred by 28 U.S.C. § 2244(d). The judge noted that the March 15, 1994, application “is not stampe d ‘Filed,’ but is stamped ‘Received,’ indicating that the Petition was not pr operly filed with the Court.” R.-3-

Doc. 6 at 4. The judge also found it “incredulous” that Mr. Rocha would wait 10 years before inquiring about the status of his orig inal application. Id . In response Mr. Rocha alleged that he waited to challenge his c onviction because on September 14, 2004, his conviction was used againsthim to deny his parole application. In reviewing the order to show cause and Mr. Rocha’s answer, the district court found that he had not established th at he had in fact properly filed an application for habeas relief in 1994. Because Mr. Rocha gave the court no reason to toll the statute of limitations, the appl ication was denied. The district court also denied a COA. II. DISCUSSION “A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right.” 28 U.S.C. § 2253(c)(2). This means that the applicant must s how “that reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court’s resolution of the co nstitutional claim was either “debatable or wrong.” Id . If the petition was denied on procedural grounds , the applicant faces a double hurdle. Not only must the applicant make a substantial-4-

showing of the denial of a constitutional right, bu t he must also show “that 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 cas e, a reasonable jurist could not conclude either that the district court erred in di smissing the petition or that the petition should be allowed to proceed further.” Id
. The applicable statute of limitations in the Antite rrorism and Effective Death Penalty Act (AEDPA) provides that a habeas ap plication from a prisoner in state custody must be filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because Mr. Rocha’s conviction became final before the effective date o f AEDPA, he had until April 24, 1997, or one year from the effective date of AE DPA, to file his petition. United States v. Hurst , 322 F.3d 1256, 1261 n.4 (10th Cir. 2003). This c ase therefore turns on whether Mr. Rocha had in fact fi led his habeas application in 1994, as he alleges, or not until 2004. Mr. Rocha’s alleged habeas application involved Col orado state court Case No. 91-CR-1070. According to the district court, the magistrate judge reviewed the district court’s docket and found three habeas actions filed by Mr. Rocha, but none of them were for Case No. 91-CR-1070. The mag istrate judge also noted-5-

that the application provided by Mr. Rocha for Case No. 91-CR-1070 was stamped “Received” but not “Filed,” indicating thatit was not properly filed. According to the district court, nothing in the doc ket of the court indicates that Mr. Rocha had properly filed a habeas application r egarding Case No. 91-CR-1070 before 2004. We review such factual findings for clear error. English v. Cody , 241 F.3d 1279, 1282 (10th Cir. 2001). These factual findings are not clearly erroneous. Therefore, no reasonabl e jurist could debate that the district court could properly find that this action is time-barred. We DENY a COA for substantially the same reasons se t forth by the district court. ENTERED FOR THE COURT
Harris L Hartz Circuit Judge