* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### OCT 7 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCO ANTONIO ROCHA, Petitioner-Appellant,

v. WILLIAM E. PRICE, Warden, GALE NORTON, Respondents-Appellees. No. 96-1447 (D.C. No. 96-Z-461) (Dist. Colo.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Marco Antonio Rocha, a state prisoner, brought this pro se petition for1 Although Mr. Rocha is no longer incarcerated on th e conviction which he

challenges in this proceeding, it is undisputed that his subsequent convictions were enhanced on the basis of this one. The state therefore concedes this action is properly before the court.

2The district court denied Mr. Rocha leave to appea l in forma pauperis and he has paid the filing fee. We have since held that the Prison Litigation Reform Act’s fee requirements do not apply to actions unde r section 2254. See United States v. Simmonds , 111 F.3d 737, 741 (10th Cir. 1997). The districtcourt also denied Mr. Rocha a certificate of appealability as required by the Antiterrorism and Effective Death Penalty Act. We have subsequently held that this requirement does not apply to cases filed before th e Act’s effective date, April 24, 1996. See United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1,1997). Mr. Rocha filed this peti tion on February 20, 1996, and the new Act therefore does not apply to this procee ding. Mr. Rocha must obtain a certificate of probable cause, however, which requi res the same showing required under the new Act, namely, that the issues raised i n his appeal are debatable among jurists, that a court could resolve the issue s differently, or that the questions deserve further proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983). For the reasons discussed below, we co nclude Mr. Rocha has failed to make this showing. -2- habeas corpus relief under 28 U.S.C. § 2254. 1 The district court ruled that his claims were procedurally barred and that Mr. Rocha has not shown cause for his failure to properly raise them in the state courts. We affirm. 2
Mr. Rocha was convicted in 1989 on a state court ch arge of possessing cocaine and sentenced to six years probation. Whil e his appeal was pending his probation was revoked and he was sentenced to four years incarceration. In his direct appeal, Mr. Rocha argued only that prosecuto rial misconduct occurred during closing argument. The state court of appeal s decision affirming his conviction on direct appeal was issued November 29, 1990, his petition for-3-

certiorari to the state supreme court was denied Ap ril 15, 1991, and the mandate was issued May 1, 1991. On October 12, 1994, Mr. Rocha filed a pro se reque st for state postconviction relief, asserting ineffective assistance of counsel. The state district court ruled that the motion was time-barred by the three-year limitation period provided by Colo. Rev. Stat. § 16-5-402, and that M r. Rocha had failed to show his late filing was the result of justifiable excus e or excusable neglect. The court also held that Mr. Rocha’s ineffectiveness claim la cked the requisite specificity in any event. Mr. Rocha appealed the district court’s denial of his request for postconviction relief in the state court of appeals. I n addition to contending on appeal that his counsel was ineffective, Mr. Rocha argued for the first time that the evidence was insufficient to support his conviction , that the statute under which he was convicted was inapplicable, and that his spe edy trial rights were violated. The state court of appeals affirmed the district co urt’s determination that Mr. Rocha had failed to excuse his late filing, and als o agreed that his allegations of inadequate counsel were insufficient. The court re fused to consider the three new issues, ruling that they could not be raised for th e first time on appeal. Mr. Rocha then filed his section 2254 motion, asserting the evidence was insufficient to support his conviction, the state s tatute under which he was convicted was improperly applied, and his counsel w as ineffective. As the above-4-

history sets out, all of these claims are procedura lly barred unless Mr. Rocha can show cause for the default and actual prejudice fro m the alleged constitutional violation, or that failure to consider his claims w ould result in a fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). The district court held that Mr. Rocha failed to do so. We have carefully reviewed the analysis and authori ties relied on by the district court and we agree substantially with thatcourt’s conclusions. Because Mr. Rocha has failed to demonstrate he is entitled to a certificate of probable
cause, see n.2 supra, we DISMISS the appeal.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge