UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

RAMON RIVERA, Petitioner - Appellant,

v. MIKE MULLIN; DREW EDMONDSON, Respondents - Appellees No. 11-6180 (W.D. Okla.) (D.C. No. 5:11-CV-00173-HE)

ORDER DENYING LEAVE TO APPEAL WITHOUT PREPAYMENT OF FEES, DENYING CERTIFICATE OF APPEALABILITY, AND DISMISSING APPEAL

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.
Ramon Rivera, a state prisoner proceeding pro se, wants to appeal from the district court’s dismissal of his 28 U. S.C. § 2254 habeas petition as untimely. We deny his request for a Certificate of Appealab ility (COA) and dismiss this appeal.
I. BACKGROUND In 2009, pursuant to a pl ea agreement Rivera pled no contest to unlawful possession of a controlled drug with intent to distribute. He was sentenced 15 years imprisonment. Rivera did not timely appeal, but later sought state post-conviction relief. The Oklahoma district court concluded his contentions of error were cognizable only on direct appeal and he had shown no justificati on for an appeal out of time. The Oklahoma FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - Court of Criminal Appeals affirmed. Rivera, proceeding pro se, then filed hi s § 2254 petition. It contended he was denied the effective assistan ce of counsel and he did not voluntarily, intelligently, or knowingly waive his right to a jury trial. According to the assigned magistrate j udge, Rivera’s convic tion became final on May 14, 2009, when the time for seeking to w ithdraw his plea or to appeal expired. Thus, the one-year limitation for filing a ha beas petition expired on May 15, 2010. See 28 U.S.C. § 2244(d)(1). Rivera did not file his petition until February 8, 2011. 1 Therefore, the magistrate r ecommended the petition be dismis sed as untimely. Although Rivera filed an objection to th e magistrate’s report, he did not meaningfully address the timeliness issue. The district court adopted the magi strate’s report and recommendation, dismissed the petition, and ente red judgment accordingly.
II. DISCUSSION 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). Ordinarily, we issue a COA “only if the applicant has made a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2 ). But we cannot issue a COA when the district court correctly invokes a pro cedural bar to dispose of the case. See Slack v. McDaniel , 529 U.S. 473, 484 (2000).

1 His petition for state post-conviction relief did not toll the limitations period because it was not filed until September 17, 2010 – after the lim itations period had already run. See 28 U.S.C. § 2244(d)(2); Fisher v. Gibson , 262 F.3d 1135, 1142-43 (10th Cir. 2001).- 3 - Although Rivera bears the burde n of demonstrating error, Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 19 95), he does not address the timeliness issue in his brief and application for COA. We liberally c onstrue the filings of pro se appellants, see Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003), but there are limits to our solicitude. We are “not required to manufacture an appellant’s argument on appeal when [he] has failed in [his] burden to draw our attention to the error below.” Hernandez , 69 F.3d at 1093 (quota tions omitted). The magist rate’s cogent report and recommendation correctly considered and resolv ed the timeliness issue; since Rivera’s objection did not address that issue, the dist rict court properly adopted the magistrate’s report and recommendation. 2 No reasonable jurist c ould conclude otherwise. See Slack , 529 U.S. at 484.
III. FILING FEES The district court denied Rivera’s motion for leave to appeal without prepayment of fees because his appeal was not take n in good faith. 28 U.S.C. 1915 (a)(3) 3 He has

2 See also Morales-Fernandez v. I.N.S. , 418 F.3d 1116, 1119 (10th Cir. 2005) (absent certain circumstances, “a party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions”).
3 28 U.S.C. § 1915 was ame nded by The Prison Litiga tion Reform Act (PLRA), particularly §§ 1915(a)(2) and (b). The PL RA amendments do not apply to §§ 2241, 2254 and 2255 actions or appeals. See McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (§ 2241); United States v. Simmonds , 111 F.3d 737, 744 (10th Cir. 1997) (§ 2254 and § 2255)), overruled on other grounds , United States v. Hurst , 322 F.3d 1256, 1261 n.4 (10th Cir. 2003). However, onl y the PLRA amendments are inapplicable, see McIntosh , 115 F.3d at 812; the balance of the statute does apply to such cases. Since § 1915(a)(1) and (3) pre-date a nd were not substantively modi fied by the PL RA, §§ 2241, 2254 or 2255 petitioners must co mply with those provisions.- 4 - reapplied here. See F. R. App. P. 4(a)(5). To qualify, he “must show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of th e issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (emphasis added). Even though we have solicitously reviewed his filings, he has failed to pass th is threshold. His brief simply makes no argument – let alone a reasoned and nonfrivolous argument – as to the dispositive issue, timeliness.
We DENY Rivera’s application for a COA an d his motion to proceed on appeal without prepayment of fees and DISMISS the appeal. Rivera must pay the filing and docket fees in full to the clerk of the district court. See Kinnell v. Graves , 265 F.3d 1125, 1129 (10th Cir. 2001) (noting di smissal of appeal does not relieve appellant of obligation to pay the filing fee). Entered by the Court: Terrence L. O’Brien United States Circuit Judge