                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                            October 25, 2006
                                     TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                              Clerk of Court

 GONZALO GOMEZ OLIVAS,

                 Petitioner - Appellant,

           v.                                                 No. 06-1302
                                                    (D. Ct. No. 06-CV-00935-ZLW)
 STATE OF COLORADO; CARLYLE                                    (D. Colo.)
 HOLDER, Warden; and THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

                 Respondents - Appellees.



                ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Gonzalo Gomez Olivas, a federal prisoner appearing pro se, seeks a certificate of

appealability (“COA”) in order to challenge the District Court’s denial of his 28 U.S.C. §


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This 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.
2254 habeas petition. Our jurisdiction arises under 28 U.S.C. § 2253(c)(1), and because

Mr. Olivas has failed to make “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we DENY a COA and DISMISS his appeal.

                                   I. BACKGROUND

       Mr. Olivas is currently a federal prisoner in the custody of the United States

Bureau of Prisons. In 1990 and 1992, prior to his federal conviction, Mr. Olivas pleaded

guilty to three separate state crimes in the Larimer County District Court in Colorado.

Mr. Olivas completed his sentences in all three cases. Thereafter, Mr. Olivas was

convicted of conspiracy to possess with intent to distribute and distribution of cocaine and

marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He was

subsequently sentenced to 30 years’ imprisonment based, in part, on his prior state

convictions.

       Mr. Olivas filed a petition for habeas corpus in the United States District Court for

the District of Colorado under 28 U.S.C. § 2254, challenging the constitutionality of the

three prior Colorado state court convictions that were used to enhance his current federal

sentence. Mr. Olivas argued that the state court entered each of his guilty pleas in

violation of his due process rights. The District Court denied the petition and Mr.

Olivas’s subsequent request for a COA. Mr. Olivas now seeks a COA from this Court to

challenge the District Court’s denial of his habeas petition.

                                    II. DISCUSSION

       The District Court properly held that Mr. Olivas may not use § 2254 to collaterally

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attack his expired state convictions. A prisoner may apply for habeas relief under § 2254

only when the habeas applicant is in custody “pursuant to the judgment of a State court.”

28 U.S.C. § 2254(a). Although a prisoner serving a sentence enhanced by prior state

convictions is “in custody” for purposes of § 2254, once a state conviction is no longer

open to direct or collateral attack in its own right, a prisoner may challenge the state

conviction under § 2254 in only two narrow circumstances: (1) when there was a failure

to appoint counsel in the prior conviction or (2) in the “rare case” where the defendant

cannot be faulted for failing to obtain timely review. See Lackawanna County Dist.

Attorney v. Coss, 532 U.S. 394, 403–05 (2001).

       Mr. Olivas does not allege facts that satisfy either exception. He does not suggest

that the state courts denied him his Sixth Amendment right to counsel. Nor does he

suggest that he was faultless for failing to obtain timely review of his claims. That

exception applies in the rare instance that, for example, the state court refuses, without

justification, to rule on a properly presented constitutional claim or when the habeas

applicant obtains evidence of actual innocence after the time for direct or collateral

review has expired. See id. at 405. Though Mr. Olivas contends that the Larimer County

District Court failed to rule on his petition for a writ of habeas corpus, the record reveals

that he did not file that petition until March 2005. Mr. Olivas’s only suggestion as to why

he failed to file a timely petition is that he only “recently discovered” the alleged

constitutional deficiencies. This is not sufficient to satisfy the Lakawanna exception. See

Davis v. Roberts, 425 F.3d 830, 836 (10th Cir. 2005) (“[I]gnorance of the law, even for an

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incarcerated pro se petitioner, generally does not excuse prompt filing.” (quotation

omitted)). Finally, Mr. Olivas does not proffer evidence of actual innocence.

Accordingly, the District Court properly dismissed the § 2254 claim.

       Mr. Olivas also requests to proceed in forma pauperis pursuant to 28 U.S.C. §

1915. We deny this request for the same reasons stated by the District Court.

                                  III. CONCLUSION

       We have carefully reviewed Mr. Olivas’s claims and the record. For the foregoing

reasons, we DENY his application for a COA, DENY his application to proceed in forma

pauperis, and DISMISS his appeal.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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