                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 7, 2014
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



    FRANK EARL MARTINEZ,

                Petitioner - Appellant,
                                                            No. 13-6233
    v.                                                    (W.D. Oklahoma)
                                                    (D.C. No. 5:12-CV-00398-M)
    JUSTIN JONES,

                Respondent - Appellee.



                                          ORDER *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Frank Earl Martinez was convicted in state court on charges of: (1)

distribution of a controlled substance within 2000 feet of a public park, and (2)

trafficking in illegal drugs. He applies for a certificate of appealability, and we

deny the request.

         Following the conviction, Mr. Martinez unsuccessfully appealed in state

court. He then sought habeas relief in federal district court, challenging the

sufficiency of the evidence on both charges. A United States Magistrate Judge

issued a report, recommending denial of habeas relief and setting a deadline for

*
         This order does not constitute precedent. 10th Cir. R. 32.1(A).
objections of September 9, 2013. On that day, Mr. Martinez filed an application

for an extension of time; eight days later, he filed an objection to the magistrate

judge’s report. The federal district judge did not rule on the request for an

extension of time. Nonetheless, the district judge conducted de novo review and

adopted the magistrate judge’s recommendation to deny habeas relief. This ruling

led Mr. Martinez to apply for a certificate of appealability, which is required for

an appeal. See 28 U.S.C. § 2253(c)(1)(A) (2006).

      We can issue a certificate of appealability only if Mr. Martinez has made “a

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

§ 2253(c)(2) (2006).

      In the application for a certificate of appealability, Mr. Martinez argues

only that his extension request was timely and that the district judge should not

have regarded the objections as waived. Thus, Mr. Martinez asks us to “remand

with directions that the District court conduct a de novo review of the magistrate’s

report.” Appellant’s Combined Opening Br. and App. for a Certificate of

Appealability at 7 (Dec. 9, 2013).

      The problem with the argument is that the district judge did not regard the

objections as waived. Though the district judge commented in passing that the

objection was filed eight days after the deadline, she did not say that the

objections were waived. Thus, the district judge noted that she had reviewed the




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magistrate judge’s report de novo. And, as noted, Mr. Martinez has asked us only

to remand the matter to the district judge to conduct de novo review.

      Mr. Martinez appears pro se; as a result, we liberally construe his

application for a certificate of appealability. See Hall v. Scott, 292 F.3d 1264,

1266 (10th Cir. 2002) (“Because Hall has filed his application for a COA pro se,

we construe his petition liberally.”). But, we cannot advocate on his behalf or

invent arguments that he has not made. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991) (“[W]e do not believe it is the proper function of the district court

to assume the role of advocate for the pro se litigant.”); In re Antrobus, 563 F.3d

1092, 1099 (10th Cir. 2009) (“Under our rules we are not permitted to invent

arguments even for pro se litigants.”). Mr. Martinez has presented only one

argument, which is based on a misreading of the district judge’s order. And the

district judge has already given Mr. Martinez what he has requested: de novo

review of the magistrate judge’s report.

      Accordingly, we conclude that Mr. Martinez has not satisfied the

requirements for a certificate of appealability and deny his request. Having

decided to deny a certificate of appealability, we must dismiss the appeal.

                                        Entered for the Court




                                        Robert E. Bacharach
                                        Circuit Judge

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