* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SANFORD DANIEL ARMIJO,

Petitioner-Appellant,

v. RICHARD MARR; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees. No. 99-1132 (D.C. No. 97-Z-1211) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Because petitioner filed his habeas petition after April 24, 1996, the

provisions of the Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA) apply to his appeal. See Lindh v. Murphy , 521 U.S. 320, 336 (1997). -2- Petitioner Sanford Daniel Armijo appeals the distri ct court’s order adopting the recommendation by a magistrate judge that his p etition for a writ of habeas corpus be denied. Because petitioner has not made a substantial showing that he was denied a constitutional right, we deny his appl ication for a certificate of appealability and dismiss the appeal. Petitioner was convicted of one count of second deg ree murder and sentenced to twenty-four years’ incarceration. His conviction was affirmed by the Colorado Court of Appeals on October 5, 1989, and h is petition for certiorari review was denied by the Colorado Supreme Court on April 23, 1990. He then filed a motion for post-conviction relief pursuant to Colorado Rule of Criminal Procedure 35(c), which was denied. The denial was affirmed on December 14, 1995, and certiorari review was refused on July 23, 1996. On June 11, 1997, 1 petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254, raising four issues: (1) ineffec tive assistance of counsel; (2) violation of his Fifth Amendment right against self incrimination; (3) denial of due process by denying his motion for a new tria l; and (4) denial of due process by failing to require a unanimous jury verd ict. The magistrate judge to whom the case was assigned found that none of these issues had merit and-3-

recommended that the petition be denied. Petitione r’s objections to the recommendation challenged only the resolution of hi s ineffective assistance of counsel claim. The district court adopted the magi strate judge’s recommendation, and this appeal followed. We note initially that this habeas petition was tim ely under the one-year limitation imposed by AEDPA. See 28 U.S.C. § 2244(d)(1) (Supp. 1999) (requiring, in relevant part, that a habeas petitio n be filed within one year from the date a prisoner’s conviction becomes final). B ecause petitioner’s conviction became final before AEDPA’s April 24, 1996 enactment, under our case law he had one year from that date to file his habeas petition. See Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). This one- year period was tolled, however, while his request for certiorari review of the denial of his post-conviction motion was pending before the Colorado Supreme Court. See 28 U.S.C. § 2244(d)(2) (Supp. 1999) (tolling one-ye ar period while application for state post-conviction relief pending); Hoggro , 150 F.3d at 1226 (holding tolling provision applies to one-year grace period) . As petitioner’s request for certiorari review was already pending on April 24, 1996, his one-year period began to run when the Colorado Supreme Court deniedhis request on July 23, 1996. Therefore, the June 11, 1997 habeas petitionwas timely.-4-

As a prerequisite to appellate review, petitioner m ust obtain a certificate of appealability by making a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c)(2) (Supp. 1999). Because he o bjected only to the magistrate judge’s recommendation concerning his in effective assistance of counsel claim, petitioner’s entitlement to a certif icate of appealability is limited to that claim. Cf. Vega v. Suthers , No. 98-1024, 1999 WL 973608 at *4 (10th Cir. Oct. 26, 1999) (holding petitioner’s fai lure to object to issue in magistrate’s report and recommendation waives appel late review of that issue). Further, because this is a post-AEDPA case, our rev iew of the state court’s decision is extremely deferential. Pursuant to 28 U.S.C. § 2254(d), petitioner cannot obtain federal habeas relief unless he shows that the state court’s adjudication of his claim “resulted in a decision t hat was contrary to, or involved an unreasonable application of, clearly establishedFederal law, as determined by the Supreme Court of the United States,” or “result ed in a decision that was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding.” Any factual determ inations by the state courts are presumed correct unless rebutted by clear and c onvincing evidence.
See § 2254(e)(1) (Supp. 1999). In light of these standards, petitioner has not sho wn that the state court erred in holding that even if counsel made errors d ue to her inexperience, there-5-

was no reasonable probability that such errors prej udiced the trial’s outcome. Petitioner argues his attorney was inadequate becau se (1) she had never tried a felony case; (2) a week before trial she had only i nterviewed one witness; (3) her cross-examination was ineffective; (4) she permitte d the admission of improper evidence; and (5) she did not object to the prosecution’s closing statements. Without providing any details regarding these alleg ed errors, petitioner argues simply that prejudice should be presumed. These al leged errors are not of the type for which prejudice is presumed, however. See Strickland v. Washington , 466 U.S. 668, 692-93 (1984) (describing limited situations in which prejudice is presumed and requiring proof of prejudice in all other cases); United States v. Cronic , 466 U.S. 648, 658-62, 665 (1984) (describing whenprejudice will be presumed, and holding specifically that an attorney ’s inexperience does not justify a presumption of ineffectiveness). Here, petitioner did not show that counsel failed t o interview additional witnesses in the week before trial, did not describ e what she would have learned had she interviewed such witnesses, did not explainwhat counsel failed to ask during cross-examination, did not describe the alle gedly inadmissible evidence, and did not describe the prosecution’s closing stat ements. Without such information, petitioner could not possibly establis h prejudice to the outcome of his trial. Because petitioner has not made a subst antial showing that he was-6-

denied a constitutional right, we deny his applicat ion for a certificate of appealability. The appeal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge