1 We grant Mr. Marioni’s Motion to Amend Appeal date d October 6, 2005. 

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

### February 1, 2006 Elisabeth A. Shumaker Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NIEVES MARIONI, Petitioner-Appellant,
v. JOE ORTIZ, Executive Director, C.D.O.C.; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appelles. No. 05-1252 (D.C. No. 05-CV-712-ZLW) (Colorado)



### ORDER
Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges. Nieves Marioni, a state prisoner proceeding pro se , seeks a certificate of appealability (COA) from this court to challenge th e district court’s dismissal of his § 28 U.S.C. § 2254 petition as untimely. He al so seeks to proceed in forma pauperis ( ifp ). We exercise jurisdiction under 28 U.S.C.§§ 1291 , 2253(c), and liberally construe Mr. Marioni’s pleadings and subm issions to this court. See Haines v. Kerner , 404 U.S. 519, 520 (1972). 1 For the reasons set out below, we-2-

deny Mr. Marioni’s application to proceed ifp as well as his application for a COA and dismiss the appeal. Mr. Marioni is currently serving a twenty-four yearsentence after being convicted in Colorado state court in April 2000 forvarious state crimes. On April 18, 2005, he filed a federal habeas petition claimi ng his sentence violated his constitutional rights because he was denied a speedy trial. The magistrate judge ordered Mr. Marioni to show cause why his applicati on should not be deemed time barred by the one-year limitation period detai led in 28 U.S.C. § 2244(d). In response, Mr. Marioni claimed the limitation period in § 2244(d) did not apply to him because his underlying conviction was void as aresult of the alleged speedy trial violation. The magistrate judge rejected this argument, conclu ding that Mr. Marioni’s conviction became final in 2000 when the time for f iling a direct appeal expired. He thus had a year from that point to file his fede ral habeas action. The judge also concluded the limitations period was not tolle d under § 2244(d)(2) because Mr. Marioni did not allege he filed any motions forpost-conviction relief in the state court during the one year after his convictio n became final. However, the district court discovered an unpublished order ente red by the Colorado Court of Appeals on January 24, 2002, relating to Mr. Marion i’s underlying criminal conviction. The district court determined that whe ther the order was issued in-3-

response to a direct appeal or a post-conviction mo tion which would have either extended or tolled the one-year period of limitatio n, Mr. Marioni’s federal habeas petition was still time barred because there existe d a two-year period in 2003 and 2004 when no state court actions were pending. The district court also declined to find pursuant to Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), that extraordinary circumstances existed to warrant equi tably tolling the limitations period. The court therefore dismissed Mr. Marioni’ s petition as untimely. We may issue a COA only where “the applicant has ma de a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the district court dismisses a habeas petition on proce dural grounds, we may issue a COA only when “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Based on our review of the district court’ s order, the record on appeal, and Mr. Marioni’s submissions to our court, we are not persuaded jurists of reason would find debatable the district court’s di smissal of Mr. Marioni’s petition as untimely. Moreover, because Mr. Marion i has not shown “the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal,” we deny his applicati on to proceed ifp
. See-4-

DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). In sum, we DENY Mr. Marioni’s application for a COA and for ifp status and DISMISS the appeal.
SUBMITTED FOR THE COURT Stephanie K. Seymour Circuit Judge