UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

MARCOS MORENO-MONTANO, Petioner - Appellant,

v. GREG JACQUERT; CLARK LOW; STATE OF UTAH, Respondents - Appellees. No. 09-4067 (D. Utah) (D.C. No. 2:06-CV-00373-DAK)

ORDER DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS , DENYING CERTIFICATE OF APPEALABILITY, AND DISMISSING APPEAL

Before HARTZ , McKAY , and O'BRIEN , Circuit Judges.

Marcos Moreno-Montano, a Utah state prisoner appearing pro se, 1 seeks to appeal from the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. MorenoMontano has not “made a substa ntial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). We deny him a certif icate of appealability (COA) and also deny his motion to proceed on appe al in forma pauperis (ifp).

1 We liberally construe Montano’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). FILED United States Court of Appeals Tenth Circuit April 27, 2010
Elisabeth A. Shumaker Clerk of CourtI. In April 2001, Moreno-Montano was convic ted of rape of a child (Count 1) and attempted sexual abuse of a child (Count 2). He was sentenced to ten years to life imprisonment on Count 1 and three years to life imprisonment on Count 2. The Utah Court of Appeals affirmed his conviction but remanded to the district court for clarification as to whether his sentence wa s to run concurrently or consecutively. 2 State
v. Moreno-Montano , No. 20010500-CA, 2 002 WL 966249 (Utah App. May 9, 2002) (unpublished). The Utah Supreme Court denied review on September 17, 2002. See
State v. Moreno-Montano , 59 P.3d 603 (Utah 2002) (unp ublished). While his direct appeal was pending, Moreno-Montano filed a petition for post-conviction relief in the state district court, which wa s dismissed as premature. On January 28, 2003, Moreno-Montano filed a § 2254 petition in the federal district court. The court dismissed his petitio n for failure to exhaust his state remedies noting, “[Moreno-Montano has] limited time re maining, according to state and federal

2 The Utah Court of Appeals stated: Although Defendant states in his brief that he was sentenced to consecutive prison terms, the State points out that while the judgment reflects consecutive sentences, th e transcript from the sentencing hearing and the pre-sentence investigation report both indicate concurrent sentences were intended. The State conced es that, in the event of an affirmance, “the case should be remanded to the trial court fo r clarification of the discrepancy.” Although the default position is that se ntences run concurrently, trial courts retain the discretion to impose cons ecutive sentences in appropriate circumstances. See Utah Code Ann. § 76-3-401 (1) (1999). Therefore, we remand to the trial court for resolu tion of the sentencing issue; we otherwise affirm. 2002 WL 966249 at *1.- 3 - statutes of limitation, to return to state c ourt to file a habeas petition, then, upon a state court decision, to revisit his claims in [the federal district c]ourt.” Moreno-Montano v. Jacquert , No. 2:06-CV-373-DAK, 2009 WL 8905 93, *1 n. 5 (D. Utah Apr. 1, 2009) (quoting Moreno-Montano v. Jacquert , No. 2:03-CV-106-DAK n. 3 (D. Utah Aug. 25, 2003). Despite this warning, Moreno-Montano di d not file his motion for post-conviction relief with the Utah courts until June 22 , 2005 – almost two years later. After unsuccessfully proceeding through the state courts, he file d another federal habeas corpus application on June 7, 2006. The court concluded he failed to file within the one-year period of limitations imposed by the Antiterrorism and E ffective Death Penalty Act (AEDPA) and dismissed his petition as untimel y. Because his first request for postconviction relief was filed while his direct appeal was pending and his second was not filed until the AEDPA’s limitation period had already run, Mo reno-Montano was not entitled to statutory tolling. The court also found his petition “hints at no circumstances whatsoever that excuse his late filing” and, therefore, equ itable tolling would not apply.
Moreno-Montano , 2009 WL 890593 at *1. Accordingly, the district court dismissed his action. Moreno-Montano appealed, arguing the district court abused its discretion because it did not properly toll the AEDPA period of limitations or apply equitable tolling.
II. A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We will issue a COA- 4 - “only if the applicant has made a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2 ). Moreno-Montano did not s eek a COA from the district court. Rather, he filed an application for a COA and a motion to proceed ifp on appeal in this court. The district court’s procedural di smissal means Moreno-Montano must demonstrate both that “jurists of reason would find it debata ble whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it to dis pose of the case, a reasonable jurist could not conclude either that the district court erre d in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.
A. Calculation of Time Under AEDPA AEDPA states: A 1-year period of limitation shall a pply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from . . . 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). It tolls the limitations period wh ile post conviction claims are pending in state courts: “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinen t judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). More no-Montano’s post-conviction petition was filed more than- 5 - one year after judgment became final. He do es not argue otherwise, but instead claims the limitations period should not apply because he ultimately did as he was told by the district court when he filed his 2005 state post-conviction motion. But, as the district court correctly noted, “a state court petition . . . that is filed following the expiration of the federal limitations period cannot toll that period because there is no period remaining to be tolled.” Tinker v. Moore , 255 F.3d 1331, 1333 (11th Cir. 2001) (quotations omitted); see also Fisher v. Gibson , 262 F.3d 1135, 1142- 43 (10th Cir. 2001).
B. Equitable Tolling We review a district court’s decision to deny equitable tolling for an abuse of discretion. Fleming v. Evans , 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling applies only in “rare and exceptional circumstances.” Laurson v. Leyba , 507 F.3d 1230, 1232 (10th Cir. 2007) (quota tions omitted). “Generally, equitable tolling requires a litigant to establish two elements: (1) that he has been pursuing hi s rights diligently, and (2) that some extraordinary circ umstance stood in his way.” Yang v. Archuleta , 525 F.3d 925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of establishing that equitabl e tolling should apply. Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). Moreno-Montano contends “newly discover ed evidence [of altered documents by the State] will give [him] a toll time.” (App. for COA at 2.) It is unclear what the newly discovered evidence might be. He claims ther e was an illegal alteration of his sentence arising from the trial court’s clarification of the concurrent/consecutive problem after remand on direct appeal (see footnote 2, ante ), but, he supplies no information. The- 6 - State’s brief to the district court refers to a reimposition of sentence occurring on July 12, 2002, at which time the original judgment was corrected to impose concurrent sentences. [R. Vol. I at 94 n.2 & 128.] In any event, Moreno-Mon tano has identified no violation of his federal rights and we cannot fat hom how modifying his sentences to run concurrently rather than consecutively is detr imental to his rights or interests. He also claims, for the first time, he is actually “innocente an [ sic ] frame[d] by the State” as evidenced by these altered documents. (App. fo r COA at 2-3.) His argument is basically incomprehensible and unsupported by any reco rd facts. Moreover, it was not presented to the district court. And he makes othe r dubious merits argum ents. Besides being somewhat incoherent, his arguments, indivi dually or collectivel y, afford him no possibility of equitable tolling and we will c onsider them for no other purpose as his habeas petition was not timely filed.
C. Motion to Proceed In Forma Pauperis Moreno-Montano filed a motion to proceed ifp on appeal with the district court. It denied his motion finding “no good faith ba sis for [his] challenge to the court’s Memorandum Decision and Order.” (Order, May 29, 2009.) He renews his motion here. To proceed ifp on appeal, Mo reno-Montano must “show a fi nancial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (emphasis added ). Because Moreno-Montano’s arguments are all frivolous, we deny his request to proceed ifp. He is directed to remit the full amount of the filing fee with in twenty days. See Kinnell v. Graves , 265 F.3d 1125, 1129 (10th- 7 - Cir. 2001) (dismissal of an app eal does not relieve appellant of the obligation to pay the appellate filing fee in full).
We DENY Moreno-Montano’s re quest for a COA and his motion to proceed ifp. This matter is DISMISSED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge