                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           OCT 7 1997

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk



 MARCO ANTONIO ROCHA,

          Petitioner-Appellant,
                                                       No. 96-1447
 v.
                                                    (D.C. No. 96-Z-461)
                                                       (Dist. Colo.)
 WILLIAM E. PRICE, Warden, GALE
 NORTON,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.

      Marco Antonio Rocha, a state prisoner, brought this pro se petition for




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
habeas corpus relief under 28 U.S.C. § 2254. 1 The district court ruled that his

claims were procedurally barred and that Mr. Rocha has not shown cause for his

failure to properly raise them in the state courts. We affirm. 2

      Mr. Rocha was convicted in 1989 on a state court charge of possessing

cocaine and sentenced to six years probation. While his appeal was pending his

probation was revoked and he was sentenced to four years incarceration. In his

direct appeal, Mr. Rocha argued only that prosecutorial misconduct occurred

during closing argument. The state court of appeals decision affirming his

conviction on direct appeal was issued November 29, 1990, his petition for


      1
        Although Mr. Rocha is no longer incarcerated on the conviction which he
challenges in this proceeding, it is undisputed that his subsequent convictions
were enhanced on the basis of this one. The state therefore concedes this action
is properly before the court.
      2
         The district court denied Mr. Rocha leave to appeal in forma pauperis and
he has paid the filing fee. We have since held that the Prison Litigation Reform
Act’s fee requirements do not apply to actions under section 2254. See United
States v. Simmonds, 111 F.3d 737, 741 (10th Cir. 1997). The district court also
denied Mr. Rocha a certificate of appealability as required by the Antiterrorism
and Effective Death Penalty Act. We have subsequently held that this
requirement does not apply to cases filed before the Act’s effective date, April 24,
1996. See United States v. Kunzman, No. 96-1310, 1997 WL 602507, at *3 n.2
(10th Cir. Oct. 1,1997). Mr. Rocha filed this petition on February 20, 1996, and
the new Act therefore does not apply to this proceeding. Mr. Rocha must obtain a
certificate of probable cause, however, which requires the same showing required
under the new Act, namely, that the issues raised in his appeal are debatable
among jurists, that a court could resolve the issues differently, or that the
questions deserve further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983). For the reasons discussed below, we conclude Mr. Rocha has failed
to make this showing.

                                         -2-
certiorari to the state supreme court was denied April 15, 1991, and the mandate

was issued May 1, 1991.

      On October 12, 1994, Mr. Rocha filed a pro se request for state post-

conviction relief, asserting ineffective assistance of counsel. The state district

court ruled that the motion was time-barred by the three-year limitation period

provided by Colo. Rev. Stat. § 16-5-402, and that Mr. Rocha had failed to show

his late filing was the result of justifiable excuse or excusable neglect. The court

also held that Mr. Rocha’s ineffectiveness claim lacked the requisite specificity in

any event. Mr. Rocha appealed the district court’s denial of his request for post-

conviction relief in the state court of appeals. In addition to contending on appeal

that his counsel was ineffective, Mr. Rocha argued for the first time that the

evidence was insufficient to support his conviction, that the statute under which

he was convicted was inapplicable, and that his speedy trial rights were violated.

The state court of appeals affirmed the district court’s determination that Mr.

Rocha had failed to excuse his late filing, and also agreed that his allegations of

inadequate counsel were insufficient. The court refused to consider the three new

issues, ruling that they could not be raised for the first time on appeal.

      Mr. Rocha then filed his section 2254 motion, asserting the evidence was

insufficient to support his conviction, the state statute under which he was

convicted was improperly applied, and his counsel was ineffective. As the above


                                          -3-
history sets out, all of these claims are procedurally barred unless Mr. Rocha can

show cause for the default and actual prejudice from the alleged constitutional

violation, or that failure to consider his claims would result in a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The district court held that Mr. Rocha failed to do so.

      We have carefully reviewed the analysis and authorities relied on by the

district court and we agree substantially with that court’s conclusions. Because

Mr. Rocha has failed to demonstrate he is entitled to a certificate of probable

cause, see n.2 supra, we DISMISS the appeal.


                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Chief Judge




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