                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 15 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    SANFORD DANIEL ARMIJO,

                Petitioner-Appellant,

    v.                                                   No. 99-1132
                                                     (D.C. No. 97-Z-1211)
    RICHARD MARR; ATTORNEY                                 (D. Colo.)
    GENERAL OF THE STATE OF
    COLORADO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.




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

unanimously that oral argument would not materially assist 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.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
      Petitioner Sanford Daniel Armijo appeals the district court’s order adopting

the recommendation by a magistrate judge that his petition for a writ of habeas

corpus be denied. Because petitioner has not made a substantial showing that he

was denied a constitutional right, we deny his application for a certificate of

appealability and dismiss the appeal.

      Petitioner was convicted of one count of second degree murder and

sentenced to twenty-four years’ incarceration. His conviction was affirmed by the

Colorado Court of Appeals on October 5, 1989, and his petition for certiorari

review was denied by the Colorado Supreme Court on April 23, 1990. He then

filed a motion for post-conviction relief pursuant to Colorado Rule of Criminal

Procedure 35(c), which was denied. The denial was affirmed on December 14,

1995, and certiorari review was refused on July 23, 1996.

      On June 11, 1997,   1
                              petitioner filed this habeas petition pursuant to

28 U.S.C. § 2254, raising four issues: (1) ineffective assistance of counsel;

(2) violation of his Fifth Amendment right against self incrimination; (3) denial

of due process by denying his motion for a new trial; and (4) denial of due

process by failing to require a unanimous jury verdict. The magistrate judge to

whom the case was assigned found that none of these issues had merit and


1
      Because petitioner filed his habeas petition after April 24, 1996, the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) apply to his appeal.   See Lindh v. Murphy , 521 U.S. 320, 336 (1997).

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recommended that the petition be denied. Petitioner’s objections to the

recommendation challenged only the resolution of his ineffective assistance of

counsel claim. The district court adopted the magistrate judge’s recommendation,

and this appeal followed.

       We note initially that this habeas petition was timely under the one-year

limitation imposed by AEDPA.        See 28 U.S.C. § 2244(d)(1) (Supp. 1999)

(requiring, in relevant part, that a habeas petition be filed within one year from

the date a prisoner’s conviction becomes final). Because petitioner’s conviction

became final before AEDPA’s April 24, 1996 enactment, under our case law he

had one year from that date to file his habeas petition.   See Hoggro v. Boone ,

150 F.3d 1223, 1225-26 (10th Cir. 1998). This one-year period was tolled,

however, while his request for certiorari review of the denial of his

post-conviction motion was pending before the Colorado Supreme Court.         See

28 U.S.C. § 2244(d)(2) (Supp. 1999) (tolling one-year period while application

for state post-conviction relief pending);    Hoggro , 150 F.3d at 1226 (holding

tolling provision applies to one-year grace period). As petitioner’s request for

certiorari review was already pending on April 24, 1996, his one-year period

began to run when the Colorado Supreme Court denied his request on July 23,

1996. Therefore, the June 11, 1997 habeas petition was timely.




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      As a prerequisite to appellate review, petitioner must obtain a certificate of

appealability by making a substantial showing that he was denied a constitutional

right. See 28 U.S.C. § 2253(c)(2) (Supp. 1999). Because he objected only to the

magistrate judge’s recommendation concerning his ineffective assistance of

counsel claim, petitioner’s entitlement to a certificate of appealability is limited

to that claim. Cf. Vega v. Suthers , No. 98-1024, 1999 WL 973608 at *4

(10th Cir. Oct. 26, 1999) (holding petitioner’s failure to object to issue in

magistrate’s report and recommendation waives appellate review of that issue).

      Further, because this is a post-AEDPA case, our review of the state court’s

decision is extremely deferential. Pursuant to 28 U.S.C. § 2254(d), petitioner

cannot obtain federal habeas relief unless he shows that the state court’s

adjudication of his claim “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” Any factual determinations by the state courts

are presumed correct unless rebutted by clear and convincing evidence.

See § 2254(e)(1) (Supp. 1999).

      In light of these standards, petitioner has not shown that the state court

erred in holding that even if counsel made errors due to her inexperience, there


                                          -4-
was no reasonable probability that such errors prejudiced the trial’s outcome.

Petitioner argues his attorney was inadequate because (1) she had never tried a

felony case; (2) a week before trial she had only interviewed one witness; (3) her

cross-examination was ineffective; (4) she permitted the admission of improper

evidence; and (5) she did not object to the prosecution’s closing statements.

Without providing any details regarding these alleged errors, petitioner argues

simply that prejudice should be presumed. These alleged errors are not of the

type for which prejudice is presumed, however.       See Strickland v. Washington ,

466 U.S. 668, 692-93 (1984) (describing limited situations in which prejudice is

presumed and requiring proof of prejudice in all other cases);    United States v.

Cronic , 466 U.S. 648, 658-62, 665 (1984) (describing when prejudice will be

presumed, and holding specifically that an attorney’s inexperience does not justify

a presumption of ineffectiveness).

       Here, petitioner did not show that counsel failed to interview additional

witnesses in the week before trial, did not describe what she would have learned

had she interviewed such witnesses, did not explain what counsel failed to ask

during cross-examination, did not describe the allegedly inadmissible evidence,

and did not describe the prosecution’s closing statements. Without such

information, petitioner could not possibly establish prejudice to the outcome of

his trial. Because petitioner has not made a substantial showing that he was


                                            -5-
denied a constitutional right, we deny his application for a certificate of

appealability.

      The appeal is DISMISSED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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