UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff - Appellee,

v. ANTONIO R. MONCADA, JR. , Defendant - Appellant. No. 17-8088 (D.C. Nos. 2:17-CV-00185-SWS 2:15-CR-00089-SWS-1) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before PHILLIPS , McKAY, and BALDOCK , Circuit Judges.

Defendant-Appellant Antonio Moncada, Jr., an inmate appearing pro se, seeks a certificate of appealability (COA) allowing him to appeal from the district court’s dismissal of his 28 U.S.C. § 2255 motion as time-barred. United States v. Moncada , No. 2:17-CV-00185-SWS; No. 2:15-CR-000 89-SWS-1, 2017 WL 6551398 (D. Wyo. Nov. 14, 2017). Because the district c ourt’s procedural ruli ng is not reasonably debatable, we deny a COA and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppe l. It may be cited, howev er, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 13, 2018

Elisabeth A. Shumaker Clerk of Court2 In 2015, Moncada pled guilty to one coun t of conspiracy to possess with intent to distribute methamphetamine and one count of possession of a firearm in furtherance of a drug trafficking crime. The district court se ntenced him to 180 months on the drug count and 60 months on the firearm count, to be served consecutively. On July 27, 2016, this court dismisse d Moncada’s direct appeal pursuant to Anders v. California , 386 U.S. 738 (1967). United States v. Moncada , 657 F. App’x 780 (10th Cir. 2016) (unpublished). Moncada did not petition for a

writ of certiorari. On November 9, 2017, Moncada filed the instant § 2255 motion. The district

court concluded that the motion was filed beyond the applicable one-year limitation period, 28 U.S.C. § 2255(f)(1), and that Moncada was not entitled to statutory or equitable tolling. Moncada , 2017 WL 6551398, at *1–2. The district court dismissed the motion as time-barred, de nied a certificate of appealability, id. at *3, and entered judgment by separate order. On appeal, Moncada argues th at the merits of his cl aims warrant review and argues that actual innocence or a fundamental miscarriage of justi ce would excuse his untimely motion. Aplt. Br. at 1–2. To obtain a C OA, Moncada must make “a substantial showing of the de nial of a constitutional right .” 28 U.S.C. § 2253(c)(2). Where, as here, a district court dismisse s a § 2255 motion on pro cedural grounds, the movant must demonstrate “that jurists of reason would find it debatable whether the [motion] states a valid claim of the denial of a constituti onal right and that jurists of3 reason would find it debatable wh ether the district court was correct in its procedural ruling.” See Slack v. McDaniel , 529 U.S. 473, 484 (2000). In the district court, Moncada argued that his Fifth Amendment rights were violated because the grand jury did not pass on the drug quantity (which he contends is inflated) and that his Si xth Amendment rights were viol ated because counsel failed to object. I R. 78, 82. He maintained that a fundamental mi scarriage of justice

would occur if the court did not hear hi s claims and that equitable tolling was

warranted. I R. 90–91. The di strict court’s procedural ruling that the fundamental miscarriage of justice exception did not ap ply, and that equitable tolling was not warranted is not reasonably de batable. It does not appear that Moncada argued actual innocence below, see McQuiggin v. Perkins , 569 U.S. 383 (2013), and therefore he has waived the issue on appeal . In any event, actual inno cence to excuse the time-bar means factual innocence, not legal insu fficiency, and Moncada (who pled guilty) urged no facts suggesting it was likely th at no reasonable juror would have convicted

him. We DENY a COA, DENY IFP, and DISMISS the appeal.

ENTERED FOR THE COURT

Bobby R. Baldock Circuit Judge