                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      April 25, 2008
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



FRANK HURTADO,

               Petitioner - Appellant,
                                                       No. 07-6264
          v.                                         (W.D. Oklahoma)
                                                (D.C. No.5:07-CV-00916-C)
DAVID PARKER, Warden,

               Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      This matter is before the court on Frank Hurtado’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Hurtado, a state prisoner, seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. 28 U.S.C.

§ 2253(c)(1)(A). 1 This court grants Hurtado’s request to proceed on appeal in

forma pauperis. Because, however, he has not “made a substantial showing of the




      1
        The district court did not issue Hurtado a COA within thirty days of the
filing of his notice of appeal. Accordingly Hurtado’s request for a COA in the
district court is deemed denied. 10th Cir. R. 22.1(C).
denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for

a COA and dismisses this appeal.

      Hurtado pleaded guilty in Oklahoma state court to two counts of uttering a

forged instrument on January 18, 2000. Because at the time of his convictions

Hurtado was serving a suspended sentence on a previous felony conviction for

furnishing an alcoholic beverage to a minor, he was sentenced to an enhanced

term of imprisonment of twenty years. Hurtado did not seek to withdraw his

guilty pleas or file a direct appeal. Instead, more than five years later, Hurtado

filed a state petition for post-conviction relief on May 31, 2005. When the state

court denied post-conviction relief, Hurtado filed the instant § 2254 petition on

August 15, 2007. Although his § 2254 petition is far from clear, Hurtado appears

to be challenging the state courts’ failure to review his claims on the merits

during collateral proceedings and appears to challenge his sentences on the

forgery convictions on the ground that they were improperly enhanced by

reference to his previous felony conviction for providing alcohol to a minor.

      The district court dismissed Hurtado’s § 2254 petition as untimely. It

began by noting that because Hurtado did not file a direct appeal or seek to

withdraw his guilty plea, his conviction became final on January 28, 2000. See

Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). Thus, the limitations

period set out in 28 U.S.C. § 2244(d) began to run on that date and expired on

January 29, 2001. See United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir.

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2003). The district court noted that Hurtado was not entitled to statutory tolling

because his state court petition for post-conviction relief had not been filed until

after the § 2244(d) limitation period had expired. Fisher, 262 F.3d at 1142-43.

The district court further concluded Hurtado was not entitled to equitable tolling

because he had failed to diligently pursue his claims. See Marsh v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000).

      The granting of a COA is a jurisdictional prerequisite to Hurtado’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Hurtado must make “a substantial showing of

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

requisite showing, he must demonstrate “reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. (quotations omitted). In evaluating

whether Hurtado has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of her claims. Id. at 338. Although Hurtado need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Hurtado’s appellate filings, the magistrate

judge’s report and recommendation, the district court’s order, and the entire

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record before this court pursuant to the framework set out by the Supreme Court

in Miller-El, we conclude Hurtado is not entitled to a COA. The district court’s

resolution of Hurtado’s § 2254 petition is not reasonably subject to debate and the

issues he seeks to raise on appeal are not adequate to deserve further proceedings.

In particular, we note that Hurtado offers absolutely no explanation for the

lengthy delay between the time his state court conviction became final and his

filing of his tardy § 2254 petition. Accordingly, this court DENIES Hurtado’s

request for a COA and DISMISSES this appeal.

                                               ENTERED FOR THE COURT



                                               Elisabeth A. Shumaker, Clerk




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