                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES CO URT O F APPEALS
                                                                October 12, 2007
                                                  Elisabeth A. Shumaker
                            TENTH CIRCUIT             Clerk of Court



 JAVIER SA LAZAR, also known as
 Javier Zapata,

             Petitioner - A ppellant,                   No. 07-1208

       v.                                                 D. Colo.
 M ILY A RD ; A TTO RN EY G EN ERAL             (D.C. No. 07-cv-579-ZLW )
 O F TH E STA TE O F C OLO RA DO,

             Respondents - Appellees.



                 OR D ER D EN YING LEAVE TO PROCEED
                     ON APPEAL IN FORM A PAUPERIS,
              D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                      A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Javier Salazar, a/k/a Javier Salazar Zapata (Salazar), was convicted by a

jury of two counts of distribution of a schedule I controlled substance and one

count of possession of a schedule I controlled substance. He was sentenced to

twenty-four years in prison in a judgment entered on February 14, 2001. The

Colorado Court of Appeals affirmed the conviction and sentence, and the

Colorado Supreme Court denied certiorari in September 2003. Salazar then filed

a state post-conviction motion in M ay 2004, which was also denied by the trial

court. The denial was affirmed by the Colorado Court of Appeals and the
Colorado Supreme Court denied certiorari in M ay 2006.

      Salazar brought this federal habeas petition, appearing pro se, 1 in February

2007. The court required him to show cause why his petition should not be

dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A). Salazar responded

with an argument on the merits of his claim, but did not address the timeliness

issue. The district court then dismissed his petition as untimely, denied Salazar’s

application for COA, and denied his motion to proceed ifp finding the “appeal is

not taken in good fath because [Salazar] has not shown the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal” pursuant to 28 U.S.C. § 1915(a)(3). (R. Doc. 15.)

      Salazar now applies for a COA and seeks leave from this Court to proceed

ifp on appeal. See 28 U.S.C. § 2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1). 2 In

response to the timeliness issue, he says: “the one year limitation period for him

to file a federal habeas corpus claim started at the time the Colorado Supreme

Court denied his petition for writ of certiorari on his post conviction motion

35(c), on M ay 08, 2006, and ended on M ay 08, 2007. M r. Salazar filed his claim

on February 22, 2007, well within the time frame.” (Petitioner’s Application &



      1
        W e liberally construe Salazar’s pro se pleadings. See Ledbetter v. City of
Topeka, Kan., 317 F.3d 1183, 1187 (10th Cir. 2003).
      2
         His original filing was incomplete due to circumstances beyond his
control. W e permitted Salazar to re-file his application for COA, motion for ifp
and brief, which he did on October 4, 2007.

                                          -2-
M otion at 5.) H e is incorrect.

      Salazar had one year after his conviction became final to file his federal

habeas petition. Excluded from that year is the time a state post-conviction

proceeding is pending. The district court correctly concluded his direct appeal

became final on December 1, 2003 (a fact he does not dispute). It then computed

the time, saying “M r. Salazar asserts that he filed a Colo. R. Crim. P. 35(c)

postconviction motion, which was pending in state court from M ay 17, 2004, until

M ay 8, 2006. Nonetheless, from December 2, 2003, until M ay 16, 2004, and from

M ay 9, 2006, until February 21, 2007, a period of more than one year, M r. Salazar

did not have a postconviction or collateral proceeding pending in state court.” (R.

Doc. 6 at 4.) The district court’s conclusions are not reasonably debatable. Slack

v. M cDaniel, 529 U.S. 473, 484 (2000).

      Salazar was well advised of his erroneous reading of applicable law by the

magistrate judge (in an order requiring him to show cause why his petition ought

not be dismissed as untimely) and the district judge (in the order dismissing his

habeas petition). Nevertheless, and without presenting any authority calling those

rulings into question, he seeks leave to appeal ifp. His motion to proceed ifp on

appeal is DENIED because he has not shown “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.”   DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

      W e D EN Y Salazar’s request for a COA and DISM ISS his application.

                                          -3-
Salazar must pay the full amount of the filing fee. Dismissal of an appeal does

not relieve a litigant of his obligation to pay the filing fee in full. Kinnell v.

Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).



                                         FOR TH E CO UR T:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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