                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     February 1, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court



 NIEVES MARIONI,

          Petitioner-Appellant,

 v.                                                    No. 05-1252
                                                (D.C. No. 05-CV-712-ZLW)
 JOE ORTIZ, Executive Director,                         (Colorado)
 C.D.O.C.; ATTORNEY GENERAL
 OF THE STATE OF COLORADO,

          Respondents-Appelles.




                                     ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Nieves Marioni, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) from this court to challenge the district court’s dismissal of

his § 28 U.S.C. § 2254 petition as untimely. He also seeks to proceed in forma

pauperis (ifp). We exercise jurisdiction under 28 U.S.C.§§ 1291, 2253(c), and

liberally construe Mr. Marioni’s pleadings and submissions to this court. See

Haines v. Kerner, 404 U.S. 519, 520 (1972). 1 For the reasons set out below, we

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          We grant Mr. Marioni’s Motion to Amend Appeal dated October 6, 2005.
deny Mr. Marioni’s application to proceed ifp as well as his application for a

COA and dismiss the appeal.

       Mr. Marioni is currently serving a twenty-four year sentence after being

convicted in Colorado state court in April 2000 for various state crimes. On April

18, 2005, he filed a federal habeas petition claiming his sentence violated his

constitutional rights because he was denied a speedy trial. The magistrate judge

ordered Mr. Marioni to show cause why his application should not be deemed

time barred by the one-year limitation period detailed in 28 U.S.C. § 2244(d). In

response, Mr. Marioni claimed the limitation period in § 2244(d) did not apply to

him because his underlying conviction was void as a result of the alleged speedy

trial violation.

       The magistrate judge rejected this argument, concluding that Mr. Marioni’s

conviction became final in 2000 when the time for filing a direct appeal expired.

He thus had a year from that point to file his federal habeas action. The judge

also concluded the limitations period was not tolled under § 2244(d)(2) because

Mr. Marioni did not allege he filed any motions for post-conviction relief in the

state court during the one year after his conviction became final. However, the

district court discovered an unpublished order entered by the Colorado Court of

Appeals on January 24, 2002, relating to Mr. Marioni’s underlying criminal

conviction. The district court determined that whether the order was issued in


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response to a direct appeal or a post-conviction motion which would have either

extended or tolled the one-year period of limitation, Mr. Marioni’s federal habeas

petition was still time barred because there existed a two-year period in 2003 and

2004 when no state court actions were pending. The district court also declined

to find pursuant to Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), that

extraordinary circumstances existed to warrant equitably tolling the limitations

period. The court therefore dismissed Mr. Marioni’s petition as untimely.

      We may issue a COA only where “the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the

district court dismisses a habeas petition on procedural grounds, we may issue a

COA only when “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Based on our review of the district court’s order, the record on appeal,

and Mr. Marioni’s submissions to our court, we are not persuaded jurists of

reason would find debatable the district court’s dismissal of Mr. Marioni’s

petition as untimely. Moreover, because Mr. Marioni has not shown “the

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

the issues raised on appeal,” we deny his application to proceed ifp. See




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

      In sum, we DENY Mr. Marioni’s application for a COA and for ifp status

and DISMISS the appeal.


                                     SUBMITTED FOR THE COURT


                                     Stephanie K. Seymour
                                     Circuit Judge




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