                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            April 27, 2010
                                  TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

MARCOS MORENO-MONTANO,

      Petioner - Appellant,                                  No. 09-4067
                                                              (D. Utah)
v.                                                 (D.C. No. 2:06-CV-00373-DAK)

GREG JACQUERT; CLARK LOW;
STATE OF UTAH,

      Respondents - Appellees.




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


Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.


      Marcos Moreno-Montano, a Utah state prisoner appearing pro se,1 seeks to appeal

from the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Moreno-

Montano has not “made a substantial showing of the denial of a constitutional right.” See

28 U.S.C. § 2253(c)(2). We deny him a certificate of appealability (COA) and also deny

his motion to proceed on appeal in forma pauperis (ifp).




      1
        We liberally construe Montano’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
                                           I.

       In April 2001, Moreno-Montano was convicted of rape of a child (Count 1) and

attempted sexual abuse of a child (Count 2). He was sentenced to ten years to life

imprisonment on Count 1 and three years to life imprisonment on Count 2. The Utah

Court of Appeals affirmed his conviction but remanded to the district court for

clarification as to whether his sentence was to run concurrently or consecutively.2 State

v. Moreno-Montano, No. 20010500-CA, 2002 WL 966249 (Utah App. May 9, 2002)

(unpublished). The Utah Supreme Court denied review on September 17, 2002. See

State v. Moreno-Montano, 59 P.3d 603 (Utah 2002) (unpublished). While his direct

appeal was pending, Moreno-Montano filed a petition for post-conviction relief in the

state district court, which was dismissed as premature.

       On January 28, 2003, Moreno-Montano filed a § 2254 petition in the federal

district court. The court dismissed his petition for failure to exhaust his state remedies

noting, “[Moreno-Montano has] limited time remaining, according to state and federal


       2
           The Utah Court of Appeals stated:
       Although Defendant states in his brief that he was sentenced to consecutive
       prison terms, the State points out that while the judgment reflects
       consecutive sentences, the transcript from the sentencing hearing and the
       pre-sentence investigation report both indicate concurrent sentences were
       intended. The State concedes that, in the event of an affirmance, “the case
       should be remanded to the trial court for clarification of the discrepancy.”
       Although the default position is that sentences run concurrently, trial courts
       retain the discretion to impose consecutive sentences in appropriate
       circumstances. See Utah Code Ann. § 76-3-401(1) (1999). Therefore, we
       remand to the trial court for resolution of the sentencing issue; we
       otherwise affirm.
2002 WL 966249 at *1.
statutes of limitation, to return to state court to file a habeas petition, then, upon a state

court decision, to revisit his claims in [the federal district c]ourt.” Moreno-Montano v.

Jacquert, No. 2:06-CV-373-DAK, 2009 WL 890593, *1 n. 5 (D. Utah Apr. 1, 2009)

(quoting Moreno-Montano v. Jacquert, No. 2:03-CV-106-DAK n. 3 (D. Utah Aug. 25,

2003).

         Despite this warning, Moreno-Montano did not file his motion for post-conviction

relief with the Utah courts until June 22, 2005 – almost two years later. After

unsuccessfully proceeding through the state courts, he filed another federal habeas corpus

application on June 7, 2006. The court concluded he failed to file within the one-year

period of limitations imposed by the Antiterrorism and Effective Death Penalty Act

(AEDPA) and dismissed his petition as untimely. Because his first request for post-

conviction relief was filed while his direct appeal was pending and his second was not

filed until the AEDPA’s limitation period had already run, Moreno-Montano was not

entitled to statutory tolling. The court also found his petition “hints at no circumstances

whatsoever that excuse his late filing” and, therefore, equitable tolling would not apply.

Moreno-Montano, 2009 WL 890593 at *1. Accordingly, the district court dismissed his

action. Moreno-Montano appealed, arguing the district court abused its discretion

because it did not properly toll the AEDPA period of limitations or apply equitable

tolling.

                                            II.

         A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

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“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Moreno-Montano did not seek a COA from the district

court. Rather, he filed an application for a COA and a motion to proceed ifp on appeal in

this court.

       The district court’s procedural dismissal means Moreno-Montano 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). “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.

A.     Calculation of Time Under AEDPA

       AEDPA states:

       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. The limitation period 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). It tolls the limitations period while post conviction claims are

pending in state courts: “[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2). Moreno-Montano’s post-conviction petition was filed more than


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one year after judgment became final. He does not argue otherwise, but instead claims

the limitations period should not apply because he ultimately did as he was told by the

district court when he filed his 2005 state post-conviction motion. But, as the district

court correctly noted, “a state court petition . . . that is filed following the expiration of

the federal limitations period cannot toll that period because there is no period remaining

to be tolled.” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quotations

omitted); see also Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

B.        Equitable Tolling

       We review a district court’s decision to deny equitable tolling for an abuse of

discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling

applies only in “rare and exceptional circumstances.” Laurson v. Leyba, 507 F.3d 1230,

1232 (10th Cir. 2007) (quotations omitted). “Generally, equitable tolling requires a

litigant to establish two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d

925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of

establishing that equitable tolling should apply. Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005).

       Moreno-Montano contends “newly discovered evidence [of altered documents by

the State] will give [him] a toll time.” (App. for COA at 2.) It is unclear what the newly

discovered evidence might be. He claims there was an illegal alteration of his sentence

arising from the trial court’s clarification of the concurrent/consecutive problem after

remand on direct appeal (see footnote 2, ante), but, he supplies no information. The

                                                  -5-
State’s brief to the district court refers to a reimposition of sentence occurring on July 12,

2002, at which time the original judgment was corrected to impose concurrent sentences.

[R. Vol. I at 94 n.2 & 128.] In any event, Moreno-Montano has identified no violation

of his federal rights and we cannot fathom how modifying his sentences to run

concurrently rather than consecutively is detrimental to his rights or interests. He also

claims, for the first time, he is actually “innocente an [sic] frame[d] by the State” as

evidenced by these altered documents. (App. for COA at 2-3.) His argument is basically

incomprehensible and unsupported by any record facts. Moreover, it was not presented

to the district court. And he makes other dubious merits arguments. Besides being

somewhat incoherent, his arguments, individually or collectively, afford him no

possibility of equitable tolling and we will consider them for no other purpose as his

habeas petition was not timely filed.

C.     Motion to Proceed In Forma Pauperis

       Moreno-Montano filed a motion to proceed ifp on appeal with the district court. It

denied his motion finding “no good faith basis for [his] challenge to the court’s

Memorandum Decision and Order.” (Order, May 29, 2009.) He renews his motion here.

To proceed ifp on appeal, Moreno-Montano must “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) (emphasis added). Because Moreno-Montano’s arguments are

all frivolous, we deny his request to proceed ifp. He is directed to remit the full amount

of the filing fee within twenty days. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th

                                                -6-
Cir. 2001) (dismissal of an appeal does not relieve appellant of the obligation to pay the

appellate filing fee in full).

       We DENY Moreno-Montano’s request for a COA and his motion to proceed ifp.

This matter is DISMISSED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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