                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 13, 2007
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


 RICH AR D G UTIAN EZ,

               Petitioner - A ppellant,                   No. 06-6311
          v.                                            W .D. Oklahoma
 DAVID PA RKER, W arden,                           (D.C. No. CIV-06-671-T)

               Respondent - Appellee.



                  OR D ER D EN YING LEAVE TO PROCEED
                      ON APPEAL IN FORM A PAUPERIS,
               D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                       A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in 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.

      Richard Gutianez, a state inmate appearing pro se, 1 petitioned for a writ of

habeas corpus under 28 U.S.C. § 2254. The district court dismissed the petition

as untim ely. G utianez filed a notice of appeal with the district court, which w e


      1
       W e liberally construe Gutianez’s pro se pleadings. See Ledbetter v. City
of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
construe as an application for a Certificate of Appealability (COA). See Fed. R.

App. P. 22(b)(1). Because the court did not grant or deny a COA within thirty

days, we deem it denied. See 10th Cir. R. 22.1(C). Gutianez renews his

application for a COA and seeks leave to proceed in forma pauperis (ifp) in this

Court. 2 Since Gutianez has failed to make a “substantial showing of a denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss his

application. W e also deny his request to proceed ifp.

                                      I. Background

      Gutianez pled guilty to first degree burglary, possession of a controlled

dangerous substance, and domestic abuse assault and battery. Judgment was

entered on September 21, 2004. Gutianez did not file a direct appeal. On January

13, 2005, Gutianez filed a petition for post-conviction relief in state court. It was

denied and later affirmed by the Oklahoma Court of Criminal Appeals. On June

21, 2006, Gutianez filed a petition for a writ of habeas corpus under 28 U.S.C. §

2254. The magistrate judge recommended the petition be dismissed as untimely.

Applying Rule 4.2 of the Rules of the Oklahoma Court of Criminal Appeals, the

magistrate concluded Gutianez’s convictions became final on October 1, 2004.

Therefore, he found Gutianez had until October 1, 2005, to file his § 2254

petition. The magistrate judge determined the petition was untimely under the

Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C.

      2
          Gutianez did not seek leave to proceed ifp in the district court.

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§ 2244(d)(1). Although Gutianez had filed a state post-conviction relief petition,

the magistrate judge concluded such petition did not statutorily toll the limitations

period under 28 U.S.C. § 2244(d)(2) because it was not filed until after the

limitations period had already expired. The magistrate also found Gutianez was

not entitled to equitable tolling. Over G utianez’s objections, the district court

adopted the magistrate’s recommendation.

                                      II. Analysis

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Gutianez makes

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

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, Gutianez must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “W here a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

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dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

      Gutianez argues the district court’s application of the AEDPA in this case

violated the separation of powers doctrine and the limitations period should be

equitably tolled because he is actually innocent. 3

      A. Separation of Powers

          Gutianez argues the district court violated the constitutional separation of

powers doctrine by applying the provisions of the AEDPA to limit his ability to

file for state post-conviction relief when the State of Oklahoma does not have a

limitations period for filing. 4 Gutianez objected to the magistrate judge’s report

and recommendation but not on this basis.

      Generally, by failing to raise an objection to the report and

recommendation, the party waives the issue on appeal. M orales-Fernandez v.

INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (“This court has adopted a firm waiver

rule under which a party who fails to make a timely objection to the magistrate

judge’s findings and recommendations waives appellate review of both factual

and legal questions.”); Hayes v. Whitman, 264 F.3d 1017, 1027 (10th Cir. 2001)



      3
        Gutianez’s underlying claims on the merits allege several violations of the
constitutions of the United States and the State of Oklahoma.
      4
         W e need not determine whether Oklahoma imposes a limitations period
for filing post conviction relief motions to resolve Gutianez’s claim. Even if it has
no such period, we find the claim waived.

                                           -4-
(failure to object to specific issue in magistrate judge’s report and

recommendation waived the issue on appeal); Whitehead v. Okla. Gas & Elec.

Co., 187 F.3d 1184, 1190 (10th Cir. 1999) (same). “This rule does not apply,

however, when (1) a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object, or when (2) the ‘interests of

justice’ require review.” M orales-Fernandez, 418 F.3d at 119.

      The first exception does not apply here. The magistrate judge’s report and

recommendation clearly explained Gutianez would waive appellate review of

objections not raised before July 31, 2006. See id.

      The second exception requires us to determine whether the “interests of

justice” permit us to hear Gutianez’s separation of powers claim. Although the

“interests of justice” test is an “elusive concept,” w e have noted the analysis is

essentially a plain error analysis. Id. at 1119-20, 1122 (“W e find the reasoning of

the circuits that apply a plain error standard to []a pro se litigant’s failure to

object to a magistrate’s reports persuasive.”). “Plain error occurs w hen there is

(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1122-23 (quotations omitted).

      Gutianez explains his “separation of powers” claim by stating the district

court “us[ed] the AEDPA to create a State statutory time limitation for filing a

State post-conviction application.” (Appellant’s Br. at 7.) The substance of

                                           -5-
Gutianez’s contention that the application of AEDPA to bar his federal habeas

petition when he is still eligible for state post conviction relief is essentially a

federalism argument; that is, Gutianez is claiming the district court improperly

usurped the powers of the state when it applied the AEDPA. See Erwin

Chemerinsky, Constitutional Law : Principles and Policies 3, 38-39 (2d ed. 2002);

John E. Nowak & Ronald D. Rotunda, Constitutional Law § 3.5 (6th ed. 1995).

The term “separation of powers” is a misnomer in this context.

      But the district court did not, as Gutianez claims, apply the AEDPA to limit

the time for filing state post-conviction relief motions; rather, the court dismissed

Gutianez’s federal habeas petition as untimely under the AEDPA . Also, the

AEDPA’s statute of limitations provision, by its own terms, applies only to

federal habeas petitions. 28 U.S.C.A. § 2244(d)(1) (“A 1-year period of

limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.”). Because it applies only to

federal habeas relief, and not state post-conviction relief, Congress did not usurp

state prerogatives.

      Because there was no error, the first step of the plain error test is not

satisfied. Not only is Gutianez’s separation of powers argument incorrect, it was

waived.




                                           -6-
      B. Actual Innocence

      In certain circumstances, the AEDPA’s limitations period may be equitably

tolled. “AEDPA ’s one-year statute of limitations is subject to equitable tolling

but only in rare and exceptional circumstances.” Fisher v. Gibson, 262 F.3d

1135, 1143 (10th Cir. 2001) (quotations omitted). A “rare and exceptional

circumstance[]” exists when the petitioner is actually innocent. Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

       To equitably toll the AEDPA statute of limitations, however, claims of

actual innocence must be diligently pursued. M iller v. M arr, 141 F.3d 976, 978

(10th Cir. 1998); Gibson, 232 F.3d at 808. Assuming Gutianez has made a

credible claim of actual innocence (a dubious proposition), he has not diligently

pursued his claims given his extended delay in filing any motions for relief:

Gutianez w aited more than eight months after the one-year statue of limitations

had expired before he filed for federal relief and he waited more than three

months after the federal statute of limitations expired before he filed a state

motion for post conviction relief. Because Gutianez fails to address the thorough

and well-reasoned portion of the district court’s opinion concluding he did not

diligently pursue his claims, he has not made the requisite substantial showing of

a denial of a constitutional right.

      W e D EN Y Gutianez’s request for a COA and DISM ISS the application.

Because Gutianez has not shown “the existence of a reasoned, nonfrivolous

                                         -7-
argument on the law and facts in support of the issues raised on appeal,” his

motion to proceed ifp on appeal is DENIED. DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991). He is directed to remit the full amount of the filing fee

within twenty days from the date of this order.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




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