                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           June 23, 2006
                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 GUILLERM O RU CC OBO -RIOS,

          Petitioner-A ppellant,

 v.
                                                            No. 05-1434
 JOE ORTIZ, Executive D irector,                           (D. Colorado)
 Colorado Department of Corrections;               (D.Ct. No. 05-CV-1216-ZLW )
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

          Respondents-Appellees.



   OR DER DENY ING LEAVE TO PRO CEED O N APPEAL IN FORM A
PAUPERIS, DENYING CERTIFICATE O F APPEALABILITY
                A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Guillermo Rucobo-Rios, a state prisoner proceeding pro se, 1 filed a petition




      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied

the petition. Rucobo-Rios then filed a notice of appeal and a motion for leave to

proceed in form a pauperis (ifp) on appeal. The district court denied a certificate

of appealability (COA), finding Rucobo-Rios had not made a substantial showing

of the denial of a constitutional right. The court also denied the motion to

proceed ifp pursuant to 28 U.S.C. § 1915(a)(3), finding the appeal was not taken

in good faith because Rucobo-Rios had not “shown the existence of a reasoned,

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

appeal.” (R. Doc. 17.) Rucobo-Rios has filed with this Court an application for a

COA and for leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(A ); F ED . R. A PP . P.

22(b)(1), 24(a)(5). W e DENY Rucobo-Rios’ application for a COA and his

motion for leave to proceed ifp.

                                     Background

      In 1999, Rucobo-Rios was convicted by a jury of felony murder, second-

degree m urder and kidnaping. He was sentenced to life in prison plus thirty-tw o

years. In July 2001 the Colorado Court of Appeals affirmed his conviction, and

on April 8, 2002, the Colorado Supreme Court denied his petition for a writ of

certiorari. Rucobo-Rios’ § 2254 petition was filed with the district court on June

30, 2005. The district court denied the petition as barred by the one-year statute

of limitations. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall

apply to an application for a writ of habeas corpus by a person in custody

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pursuant to the judgment of a State court.”).

                                      Discussion

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Rucobo-Rios

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

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

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

(quotations omitted). Because the district court dismissed his habeas petition on

procedural grounds, Rucobo-Rios must demonstrate both “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. Rucobo-Rios has not met

this burden.

      “W here 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. The district court correctly found Rucobo-Rios’

motion was time-barred. His sentence became final on July 8, 2002, when the

time period for seeking review of his conviction in the United States Supreme

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Court expired. 28 U.S.C. § 2244(d)(1)(A ); Rhine v. Boone, 182 F.3d 1153, 1155

(10th Cir. 1999). His petition for writ of habeas corpus was filed on June 30,

2005, almost two years past the expiration of the one year statute of limitations.

      Rucobo-Rios’ argument that he is entitled to the application of equitable

tolling is without merit. 2 He does not demonstrate a “rare and exceptional

circumstance[]” warranting equitable tolling of the statute. Gibson v. Klinger,

232 F.3d 799, 808 (10th Cir. 2000) (quotations omitted); see also United States v.

Willis, 202 F.3d 1279, 1281 n.3 (10th Cir. 2000) (case must present extraordinary

circumstances to w arrant equitable tolling of statute of limitations). Because

reasonable jurists could not conclude the district court erred in dismissing

Rucobo-Rios’ petition as untimely, we DENY his application for a COA and

dismiss his application.

      A prisoner seeking leave from this court to proceed ifp must show “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). The district court found Rucobo-Rios had not done so and held the

appeal was not taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3). After

reviewing Rucobo-Rios’ contentions and giving weight to the district court’s



      2
        Rucobo-Rios filed a petition for writ of habeas corpus with the Colorado
Supreme Court sometime after April 15, 2005. The court denied the petition on May 25,
2005. This filing did not toll the statute of limitations under 28 U.S.C. § 2244(d)(2)
because it, too, was filed after the statute had run.

                                          -4-
decision, we adopt the district court’s finding. Coppedge v. United States, 369

U.S. 438, 446 (1962). W e DENY Rucobo-Rios’ motion to proceed ifp and order

him to remit the full amount of the filing fee within twenty days. W e GRANT

R ucobo-R ios’ M otion to A mend the Notice of Appeal Showing Cause, and DEN Y

his M otion to Dismiss/Discharge Petitioner for Violation of Doctrine of Coram

Non Judice.

      D ISM ISSED .

                                      Entered by the C ourt:

                                      Terrence L. O ’Brien
                                      United States Circuit Judge




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