                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  March 18, 2008
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



 ROMAN M. PADILLA,

                Plaintiff - Appellant,                   No. 07-2262
           v.                                              D. N.M.
 TIMOTHY HATCH; ATTORNEY                     (D.C. No. CIV-07-00540-MV-RHS)
 GENERAL OF THE STATE OF NEW
 MEXICO,

                Defendant - Appellee.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY
                          AND DISMISSING APPEAL


Before O’BRIEN, EBEL, and GORSUCH, 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.

      Appearing pro se 1 and in forma pauperis, Roman Padilla seeks a certificate

of appealability (COA) to appeal from the dismissal of his petition for a writ of



       We liberally construe pro se pleadings. See Ledbetter v. City of Topeka,
       1

Kan., 317 F.3d 1183, 1187 (10th Cir. 2003)
habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the

petition as time-barred and denied a COA. We likewise deny a COA and dismiss

the application.

      Padilla, a prisoner in state custody, filed an application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. The magistrate judge determined Padilla’s

application was not filed within the one year statute of limitations contained in the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §

2244(d)(1)(A). 2 The judge rejected Padilla’s argument that the statute of

limitations should be equitably tolled because he was unaware of any time limit.

The district court adopted the magistrate judge’s recommendations and denied the

petition. Padilla filed a timely notice of appeal and request for a COA. The

district court denied a COA and Padilla renews his request here.

      A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 325-26 (2003). It will issue “only if the applicant has made a

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

       2
         As set forth by the magistrate judge, Padilla’s state court judgment was
entered on March 15, 2005. Padilla filed a motion to reconsider sentence on
March 23, 2005, which was denied on April 8, 2005. Because he did not pursue a
direct appeal, his conviction became final thirty days later, on May 9, 2005. N.M.
Stat. Ann. § 39-3-9; 28 U.S.C. § 2244(d)(1)(A). Thus, to be timely, his habeas
corpus petition would have to have been filed by May 10, 2006. See United
States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003). It was not filed until
May 31, 2007. Although Padilla also filed a petition for post-conviction relief in
state court, it was not filed until after the statute of limitations had already
expired. Thus, it did not toll the statute of limitations under 28 U.S.C.
§ 2244(d)(2).

                                         -2-
§ 2253(c)(2). This standard requires an applicant to show “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.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quotations omitted). Where, as here, an application is denied on

procedural grounds, the applicant must also show “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

“Where 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 dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

      In his application for a COA and proposed opening brief, Padilla does not

challenge the district court’s conclusion that his petition is untimely and does not

claim he is entitled to equitable tolling. Instead, he argues the merits of his

claims. We need not consider the merits as a plain procedural bar is present and

the district court was correct to invoke it. See id.

      We DENY a COA and DISMISS the application.

                                                 ENTERED FOR THE COURT


                                                 Terrence L. O’Brien
                                                 Circuit Judge




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