FILED

United States Court of Appeals

Tenth Circuit

April 1, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER PRIMERO,

Plaintiff - Appellant,

No. 09-2299

(D.C. No. 1:09-CV-00113-JB-GBW)

(D. N.M.)

v.

JAMES JANECKA; ATTORNEY

GENERAL OF THE STATE OF NEW

MEXICO,

Defendants - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, ANDERSON, TYMKOVICH, Circuit Judges.

Christopher Primero, a New Mexico state prisoner proceeding pro se, seeks

a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254

application for habeas relief. See id. § 2253(c) (requiring COA to appeal denial

of application). Because Mr. Primero has failed to make a substantial showing of

the denial of a constitutional right, as required by 28 U.S.C. 2253(c)(2), we deny

his request for a COA and dismiss the appeal.

I. BACKGROUND

Mr. Primero pleaded no contest in New Mexico state court to ten counts of

attempted criminal sexual penetration in the first degree (child under 13). See

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N.M. Stat. Ann § 30-9-11(C)(1) (2001). On February 2, 2007, he was sentenced

to 54 years’ imprisonment. He filed a petition for a writ of habeas corpus in New

Mexico state district court on July 10, 2008. The court dismissed the petition and

the New Mexico Supreme Court denied his petition for a writ of certiorari on

November 20, 2008. 

On February 5, 2009, Mr. Primero filed his § 2254 application in the

United States District Court for the District of New Mexico, asserting (1) that the

state trial court erred in not quashing the indictment because it was based on

hearsay; (2) his due-process rights were violated by prosecutorial misconduct

because the prosecutor misled the investigator into corroborating unknown or

unestablished statements; (3) his due-process rights were violated because

insufficient evidence was presented to the grand jury; (4) his due-process rights

were violated by prosecutorial suppression of exculpatory evidence and other

prosecutorial and judicial failures to make material evidence and witnesses

available; (5) his Sixth and Fourteenth Amendment rights were violated by

ineffective assistance of counsel because counsel did not investigate, develop a

defense strategy, interview potential witnesses, or obtain an expert witness; (6)

his Sixth and Fourteenth Amendment rights were violated by ineffective

assistance of counsel because counsel misled and threatened him during the plea

process and failed to inform him of the terms and conditions of his plea

agreement; (7) he was denied due process because the trial court did not allow

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him to withdraw his plea, despite the ineffectiveness of his counsel; (8) the trial

court violated his due-process right to a full and fair hearing on state habeas

review; and (9) newly discovered evidence (an investigative report by New

Mexico Child Protective Services and testimony in a separate proceeding by his

defense counsel) shows that the charges against him were unsubstantiated and that

his trial counsel was ineffective.

The district court rejected Mr. Primero’s § 2254 application as time-barred. 

Because Mr. Primero did not appeal his February 2, 2007, judgment of

conviction, the one-year limitation period of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), see 28 U.S.C. § 2244(d)(1)(A), began to

run when his time for appeal had expired on March 5, 2007, see N.M. Stat. Ann. §

39-3-3(A)(1) (1978) (time for appeal is 30 days from entry of judgment). His

application in federal court thus was filed well after the March 5, 2008 deadline. 

And his state-court habeas proceeding did not toll the limitations period under

§ 2244(d)(2) because that proceeding did not commence until July 10, 2008,

which was 127 days after expiration of the AEDPA limitations period.

The district court rejected Mr. Primero’s arguments that his application was

timely. First, the court held that the limitations period was not tolled under

§ 2244(d)(2) by Mr. Primero’s state-court motions for records and free process,

both filed on May 21, 2007. It determined that (1) neither motion was an

application for postconviction or other collateral review of his conviction; and (2)

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even if they did toll the period, they did not toll enough days to help Mr. Primero. 

Second, the district court held that Mr. Primero had not established his

entitlement to equitable tolling; among other things, Mr. Primero had not shown

due diligence or actual innocence. Third, the district court held that Mr. Primero

could not benefit from the AEDPA provision that delays the start of the one-year

limitations period until “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D). It ruled that the evidence allegedly

discovered on June 30, 2008, did not relate to most of his claims (all but some of

his ineffective-assistance claims) and he had failed to establish his due diligence

in obtaining the evidence. 

Finally, the district court held that even if Mr. Primero’s ineffectiveness

claims were not time-barred, they failed on the merits.

In requesting a COA, Mr. Primero asserts the same arguments before this

court as he did before the district court. 

II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

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encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. If the application was denied on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

We have examined the opinion of the district court. No reasonable jurist

could debate whether Mr. Primero’s application under § 2254 should have been

resolved in a different manner or that the issues he presented were adequate to

deserve encouragement to proceed further. See id.

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III. CONCLUSION

We DENY the application for a COA and dismiss the appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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