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 proceeding 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 forth by the district court, we

DENY a COA and DISMISS.

On September 18, 2003, Garcia pled guilty to possession 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 window 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 (“AEDPA”); 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 show “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 encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted). Because the district court denied Garcia a COA,

he may not appeal the district court’s decision absent a grant of COA by this

court. 

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On June 30, 2005, Garcia filed this § 2254 petition, claiming that the trial

court acted beyond its power when it ordered mandatory parole. A magistrate

judge ordered Garcia to show cause why his claim should not be dismissed as

time-barred and for failure to exhaust state remedies. Upon receiving Garcia’s

response, the district court dismissed the claim and denied his subsequent

application for a COA. Garcia now seeks a COA from this court and presents the

same arguments he presented to the district court.1

Under 28 U.S.C. § 2244(d), a petitioner has one year 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 to filing an application created

by a violation of federal law or the Constitution was removed; (3) the date on

which the constitutional right asserted was initially recognized by the Supreme
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Court and made retroactively applicable to cases on collateral review; or (4) the

date on which the factual predicate of the claim could have been discovered

through the exercise of due diligence. 

Garcia filed his petition more than a year after his 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 had a year from the date the

Supreme Court decided Blakely to file the instant petition. However, “Blakely

does not apply retroactively to convictions that were 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. denied 535 U.S. 1099 (2005). Hence, Blakely has 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 after Blakely was decided. 

Garcia also argues that he could not have discovered 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 remedies. In order to do so,

federal issues must be presented “to the highest state court, either by direct

review of the conviction or in a postconviction attack.” 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 for 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