## F I L E D United States Court of Appeals Tenth Circuit 

### March 17, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL GARCIA, Petitioner – Appellant, v. JOE ORTIZ, Executive Director, Colorado Department of Corrections; and the ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents – Appellees. No. 05-1433 (D.C. No. 05-CV-01217-ZLW)

(D. Colo.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before KELLY , McKAY , and LUCERO , Circuit Judges.
Michael Garcia, a Colorado state prisoner proceedin g pro se, requests a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition. For substantially the same reasons set f orth by the district court, we
DENY a COA and DISMISS

. On September 18, 2003, Garcia pled guilty to posses sion of narcotics and was sentenced to four years in prison. He was also apparently sentenced to a three-year period of mandatory parole. He did not appeal this decision, which became final on November 3, 2003, when his 45-day w indow to appeal under Colo. App. R. 4(b)(1) expired.1 Garcia’s petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AED PA”); as a result, AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires Garcia to sho w “that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Because the distr ict court denied Garcia a COA, he may not appeal the district court’s decision abs ent a grant of COA by this court. - 2 - On June 30, 2005, Garcia filed this § 2254 petition , claiming that the trial court acted beyond its power when it ordered mandat ory parole. A magistrate judge ordered Garcia to show cause why his claim sh ould not be dismissed as time-barred and for failure to exhaust state remedi es. Upon receiving Garcia’s response, the district court dismissed the claim an d denied his subsequent application for a COA. Garcia now seeks a COA fromthis court and presents the same arguments he presented to the district court. 1 Under 28 U.S.C. § 2244(d), a petitioner has one yea r from the latest of the following to file a § 2254 petition: (1) the date on which the underlying judgment became final; (2) the date on which an impediment t o filing an application created by a violation of federal law or the Constitution w as removed; (3) the date on which the constitutional right asserted was initial ly recognized by the Supreme- 3 -

Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim co uld have been discovered through the exercise of due diligence. Garcia filed his petition more than a year after hi s conviction became final. His claim is based on the Supreme Court’s decision in Blakely v. Washington , 542 U.S. 296 (2004). As such, he asserts that he h ad a year from the date the Supreme Court decided Blakelyto file the instant petition. However, “Blakely does not apply retroactively to convictions that we re already final at the time the Court decided Blakely , June 24, 2004.” United States v. Price , 400 F.3d 844, 849 (10th Cir. 2005), cert. denied535 U.S. 1099 (2005). Hence, Blakelyhas no effect on the statute of limitations period in this case. Also, Garcia did not file his petition until June 30, 2005, more than a year afte r Blakelywas decided. Garcia also argues that he could not have discovere d the factual predicate for his claim through the exercise of due diligence until he did so. Because the factual predicate for the claim was the sentencing decision itself, this is plainly wrong. As such, his claim is time-barred. Garcia also did not exhaust his state court remedie s. In order to do so, federal issues must be presented “to the highest st ate court, either by direct review of the conviction or in a postconviction att ack.” Dever v. Kansas State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994). Garcia did neither.- 4 -

For the reasons set forth above, Garcia’s request f or a COA is DENIED and the appeal is DISMISSED

. His motion to proceed in forma pauperis is
GRANTED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge