                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               APR 23 2003
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ROY MARQUEZ,

          Petitioner-Appellant,
 v.                                                          No. 03-2008
                                                   (D.C. No. CIV-02-536 JP/WWD)
 JOE R. WILLIAMS, Warden;                                 (D. New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.


                                  ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, 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.

      Petitioner Roy Marquez, a state prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
petition. We deny his request for a COA and dismiss the appeal.

       On January 3, 1997, Marquez was sentenced to 62 1/2 years in prison after he was

convicted by a jury of intimidating a witness, kidnaping, and criminal sexual penetration

of a minor. On November 20, 1997, his direct appeal was denied by the New Mexico

Court of Appeals, and the New Mexico Supreme Court denied certiorari on January 6,

1998. He filed his state habeas action on December 11, 2000, which was denied on

January 25, 2002, and the New Mexico Supreme Court denied certiorari on April 22,

2002. On May 8, 2002, Marquez filed his § 2254 petition in federal court. The

magistrate judge found that Marquez’ § 2254 petition was untimely filed under 28 U.S.C.

§ 2244(d)(1)(A), and recommended that it be dismissed. The district court adopted the

findings of the magistrate, denied Marquez’ motion for tolling, and dismissed the petition

as untimely.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 123 S. Ct. 1029, 1039

(2003). A COA can issue only “if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El, 123 S. Ct. at 1034.

After careful review of the record, we conclude the requirements for issuance of a COA

have not been met.


                                              2
      We DENY the request for a COA and DISMISS the appeal for substantially the

same reasons as stated in the magistrate judge’s report dated November 19, 2002, and the

district court’s order entered December 16, 2002. Marquez’ motion to proceed in forma

pauperis on appeal is DENIED as moot. The mandate shall issue forthwith.

                                         Entered for the Court

                                         Mary Beck Briscoe
                                         Circuit Judge




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