                                                                             FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 11, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 DANIEL PESENGULO LUCERO,

               Petitioner-Appellant,                     No. 07-1471
          v.                                               D. Colo.
 KEVIN MILYARD, Warden;                         (D.C. No. 06-cv-01916-WYD)
 COLORADO ATTORNEY
 GENERAL,

               Respondent-Appellee.


                 ORDER DENYING LEAVE TO PROCEED
                   ON APPEAL IN FORMA PAUPERIS,
               DENYING CERTIFICATE OF APPEALABILITY,
                       AND DISMISSING APPEAL


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



      Daniel Pesengulo Lucero, a state prisoner proceeding pro se, 1 filed a 28

U.S.C. § 2254 petition for writ of habeas corpus. The district court denied the

petition as well as Lucero’s constructive application for a Certificate of

Appealability (COA). 2 It also denied Lucero’s motion to proceed in forma

pauperis (ifp) on appeal as procedurally deficient. In this Court, Lucero requests a


      1
         We liberally construed pro se pleadings. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
      2
         Lucero filed a notice of appeal which the district court construed as a
request for a COA. See Fed. R. App. P. 22(b)(1).
COA and again seeks leave to proceed ifp on appeal. See 28 U.S.C. §

2253(c)(1)(A); Fed. R. App. P. 22(b)(1), 24(a)(5). We deny both requests.

                                I. BACKGROUND

      Lucero was convicted in 1999 by a jury of two counts of first degree

burglary, one count of second degree assault, two counts of menacing, two counts

of child abuse, one count of harassment, and two counts of a crime of violence.

He was sentenced to 15 years in prison. The Colorado Court of Appeals affirmed

his conviction and sentence and, on March 11, 2002, the Colorado Supreme Court

denied Lucero’s petition for writ of certiorari. Lucero did not file a petition for

writ of certorari with the United States Supreme Court. Accordingly, under

federal habeas law, Lucero’s conviction became final on June 10, 2002, when the

time to file a petition for writ of certiorari with the United States Supreme Court

expired.

      On two separate occasions, Lucero filed for post-conviction relief in state

court. On July 30, 2002, Lucero sought a reduction of his sentence under Rule

35(b) of the Colorado Rules of Criminal Procedure. 3 The state trial court denied

Lucero’s motion on August 9, 2002; he did not appeal. A little more than a year

later, on September 5, 2003, Lucero again sought state court post-conviction

      3
         Rule 35(b) provides, in pertinent part: “The court may reduce the
sentence provided that a motion for reduction of sentence is filed . . . within 120
days after receipt by the court of a remittitur issued upon affirmance of the
judgment or sentence or dismissal of the appeal . . . .” Colo. R. Crim. P. 35(b)(2).


                                         -2-
relief, this time asking the court to set aside his conviction under Rule 35(c) of

the Colorado Rules of Criminal Procedure. 4 The trial court denied relief on

October 29, 2003, and the Colorado Court of Appeals affirmed on November 17,

2005. The Colorado Supreme Court subsequently denied Lucero’s petition for

writ of certiorari on March 13, 2006.

      On September 26, 2006, Lucero filed a § 2254 petition in federal court

asserting various constitutional violations related to his trial. The State filed an

answer asserting the affirmative defense that Lucero’s petition was filed beyond

the one-year statute of limitations. See 28 U.S.C. § 2244(d)(1); Kilgore v.

Attorney Gen. of Colo., 519 F.3d 1084, 1089 (10th Cir. 2008) (untimeliness of a §

2254 petition “must either be pled by the government as an affirmative defense,

or be clear from the face of the petition itself”). The district court dismissed the

petition as time barred, determining Lucero’s conviction became final and the

limitations period began to run on June 10, 2002. See Locke v. Saffle, 237 F.3d

1269, 1273 (10th Cir. 2001) (“Under the statute, a petitioner’s conviction is not

final and the one-year limitation period for filing a federal habeas petition does

not begin to run until--following a decision by the state court of last resort--after

the United States Supreme Court has denied review, or, if no petition for


      4
        Rule 35(c) proceedings “provide defendants with an opportunity to argue
that consititutional errors associated with their trials, guilty pleas, or sentences
should result in convictions or sentences being set aside.” People v. Valdez, 178
P.3d 1269, 1279 (Colo. App. 2007).

                                          -3-
certiorari is filed, after the time for filing a petition for certiorari with the

Supreme Court has passed.”) (quotations omitted). The district court concluded

the time ran on the one-year limitation until July 30, 2002, (49 days) when it was

tolled by the filing of Lucero’s Rule 35(b) motion with the state trial court. See

28 U.S.C. § 2244(d)(2) (tolling the time during which a properly filed application

for state post-conviction or other collateral review is pending). The statute of

limitations remained tolled until September 23, 2002, when the time to appeal

from the trial court’s denial of the Rule 35(b) motion expired. See Colo. R. App.

P. 4(b) (notice of appeal in criminal case must be filed “within forty-five days

after the entry of the judgment or order appealed from”). The court then

determined Lucero had 316 days from September 23, 2002, or until August 5,

2003, in which to file his § 2254 petition. He did not do so until September 26,

2006, over three years late. Therefore, his petition was untimely.

       Lucero argued his 35(c) motion also tolled the running of the statute of

limitations. The district court considered this argument but determined the Rule

35(c) motion did not toll the statute of limitations because it was filed after the

limitations period had already expired. It also declined to apply Lucero’s grounds

for equitable tolling because they related to the late blooming Rule 35(c)

proceeding.

                     II. CERTIFICATE OF APPEALABILITY

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

                                            -4-
Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Lucero 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. McDaniel, 529 U.S. 473, 484 (2000)

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

procedural grounds, Lucero 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 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. We review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         In support of his request for a COA, Lucero argues his conviction did not

become final under Colorado law until July 26, 2002, when he filed his Rule




                                           -5-
35(b) motion 5 (rather than June 10, 2002, when the time expired for filing a

petition for a writ of certiorari with the United States Supreme Court). To arrive

at this date, Lucero relies on a quote from the Colorado Supreme Court opinion

Ghrist v. People, which says: “The timely filing of a 35(b) motion suspends

finality of sentence while the court reconsiders the original sentence.” 897 P.2d

809, 814 (Colo. 1995). Under Lucero’s theory, the time between when the

Colorado Supreme Court denied certiorari (March 11, 2002) and when he filed for

Rule 35(b) relief (July 26, 2002) does not count against the federal habeas one-

year statute of limitations. He then asserts the statute of limitations was tolled

from July 26, 2002, until September 23, 2002, the period his Rule 35(b)

proceedings were pending, and from September 5, 2003, to March 13, 2006, the

period his Rule 35(c) proceedings were pending. He further asserts equitable

grounds warrant tolling the 196 days between the conclusion of his Rule 35(c)

proceedings and when he filed for federal habeas relief on September 26, 2006.

Because only 346 days elapsed between when his Rule 35(b) motion became final

(September 23, 2002) and when he filed for Rule 35(c) relief (September 5,

2003), Lucero argues his petition was timely. Lucero assumes State law trumps

the federal habeas corpus finality rules. He is wrong.


      5
          The district court found Lucero filed for Rule 35(b) relief on July 30,
2002. Lucero argues in his request for a COA that the motion was filed on July
26, 2002. We use the July 26 date in our calculations without concluding the
district court clearly erred.

                                         -6-
      The law is clear: “[The] 1-year period of limitation . . . shall run from . . .

the date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A)

(emphasis added). Because Lucero did not seek direct review from the United

States Supreme Court, his conviction became final and the habeas clock began to

run the day after the time for filing a petition for certiorari with the Supreme

Court passed (June 11, 2002). See Locke, 237 F.3d at 1273. According to Rule

13(1) of the Supreme Court Rules, Lucero had 90 days from March 11, 2002, to

file a petition for writ of certiorari. Therefore, his conviction became final on

direct review on June 10, 2002. 6 Lucero had one year from that date to file his

habeas petition unless equitable or statutory reasons tolled the statute. See 28

U.S.C. § 2244(d)(2). Lucero’s Rule 35(b) proceeding from June 26, 2002, to

September 23, 2002, occurred after his conviction became final and only served to

temporarily suspend the running of the statute of limitations under § 2244(d)(2).

Id.; see also, People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (describing

Rule 35 proceedings as permissible, not mandatory, post-conviction relief). After

crediting all statutory tolling, Lucero’s one-year limitations period expired on

August 8, 2003. 7 See Attachment 1, Habeas Timeline. His subsequent Rule 35(c)

      6
       The ninetieth day, June 9, fell on a Sunday extending the last day to file
to Monday, June 10. See Sup. Ct. R. 30(1).
      7
        Ordinarily, the Colorado Court of Appeals “cannot review the denial of a
Crim. P. 35(b) motion when the issue before it is the propriety of the sentence.”

                                          -7-
motion filed on September 5, 2003, fell outside this date and cannot toll the

limitations period. For the same reason, Lucero’s equitable tolling arguments tied

to his Rule 35(c) proceedings cannot toll the limitations period. Lucero’s petition

for habeas corpus relief on September 25, 2006, was late by all accounts.

      We GRANT Lucero’s motion to submit an amended brief in support of a

COA, which we have considered. Lucero’s request for a COA is DENIED and

his nascent appeal is dismissed. With regard to his request to proceed ifp on

appeal, Lucero was required to show “a financial inability to pay the required

filing fees, and the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991). We DENY his request because he failed to

present a nonfrivolous argument. We order him to immediately remit the full

amount of the filing fee and remind him of his obligation to do so even though

this appeal has been dismissed. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th

Cir. 2001).

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge


People v. Ellis, 873 P.2d 22, 23 (Colo. App. 1993). Because Lucero’s habeas
petition is untimely, we need not address whether Lucero could have appealed the
trial court’s denial of his Rule 35(b) motion. Instead we give him the benefit of
the doubt by extending the tolling through the appellate period to September 23,
2002. See Colo. R. App. P. 4.

                                         -8-
                                                        Attachment 1
                                                       Habeas Timeline
                                                      28 U.S.C. § 2244(d)



                                                                                   Days since last Total non-tolled
Event Date    Event                                         Clock Start Clock Stop tolling event   days
     06/21/99 Conviction
              Colorado Court of Appeals affirmed
     10/18/01 conviciton

     03/11/02 Colorado Supreme Court denied certiorari
              90 days to file for certiorari with U.S.
     06/10/02 Supreme Court expired *                          06/10/02
              Lucero filed for Colorado Rule 35(b) post-
     07/26/02 conviction relief                                              07/26/02                    46      46
              Colorado District Court denied Rule 35(b)
     08/09/02 motion
              45 days to appeal denial expired under
     09/23/02 Colo. R. of App. P. 4 **                         09/23/02

     08/08/03 1-year Statute of Limitations has run                                                             365
              Lucero filed for Colorado Rule 35(c) post-
     09/05/03 conviction relief                                              09/05/03                   346     392
              Colorado District Court denied Rule 35(c)
     10/29/03 motion
              Colorado Court of Appeals affirmed
     11/17/05 denial

     03/13/06 Colorado Supreme Court denied certiorari         03/13/06
              Lucero filed for habeas corpus relief with
     09/25/06 the Federal District Court                                     09/25/06                   195     587




              * The habeas statute of limitations is tolled while a petition for certorari to the U.S. 
              Supreme Court is pending or if no petition is filed the time during which a petition 
              could be filed.  Locke v. Saffle , 237 F.3d 1269, 1271 (10th Cir. 2001).


              **  The habeas statute of limitations is not tolled by a petition for certorari to the 
              U.S. Supreme Court from state post‐conviction proceedings.  See Lawrence v. 
              Florida , ‐‐ U.S. ‐‐, 127 S.Ct. 1079, 1081 (2007).
