                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 JUAN JOEL GARCIA,

          Petitioner-Appellant,
 v.

 TIMOTHY HATCH, Warden,                                 No. 09-2131
 Guadalupe County Correctional               (D.C. No. 08-CV-00881-BB-KBM)
 Facility,                                               (D. N.M.)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      In 2003, a New Mexico state court jury convicted Juan Joel Garcia of

multiple offenses connected with a home break-in and robbery, a result the New

Mexico Court of Appeals and New Mexico Supreme Court affirmed. See State v.

Garcia, No. 24,347, memo. op. (N.M. Ct. App. Apr. 5, 2004), cert. denied, No.

28,632, order (N.M. May 24, 2004). Mr. Garcia’s judgment and conviction

became final on August 23, 2004, when the time for seeking review in the United

States Supreme Court expired.


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Four years later, on September 23, 2008, Mr. Garcia filed in the United

States District Court for the District of New Mexico, a pro se federal habeas

petition under 28 U.S.C. § 2254. The petition was referred for initial

recommendation to a magistrate judge who recommended to the district court that

it dismiss the petition as time-barred because it was filed more than one year after

his judgment of conviction became final. 28 U.S.C. § 2244(d)(1)(A). Mr. Garcia

objected to this recommendation. While admitting that his petition was filed after

the expiration of the one-year limitations period, Mr. Garcia argued, among other

things, that state-created impediments prevented him from filing a timely federal

habeas petition and, accordingly, these impediments statutorily tolled the statute

of limitations. See 28 U.S.C. § 2244(d)(1)(B). The district court rejected Mr.

Garcia’s objections, dismissed his petition, and denied Mr. Garcia’s application

for a certificate of appealability (“COA”).

      Mr. Garcia now renews before us his request for a COA. We may issue a

COA only if Mr. Garcia makes a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation

omitted). Because Mr. Garcia is proceeding pro se, we must and do construe his

application liberally. Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).




                                        -2-
Even doing so, however, he has failed to meet the statutory threshold for issuance

of the requisite certificate.

       Before us, Mr. Garcia renews his argument that the State of New Mexico

prevented him from filing a timely federal habeas petition by failing to provide

him with access to a law library and adequate legal assistance from other

prisoners. In October 2000, the New Mexico Department of Corrections decided

to close prison law libraries and replace them with a program called the Legal

Access Program. R. Vol. I at 268. Under its program, the Department provides

to prisoners form packets (with instructions) for certain legal actions, including

direct appeals of convictions and habeas corpus petitions (state and federal). R.

Vol. I at 268. Staff is available to assist in filling out the forms, and prisoners are

given access to a number of legal texts and reference books, including a copy of

Lewis v. Casey, 518 U.S. 343 (1996), a Spanish law dictionary, Black’s Law

Dictionary, AEDPA (28 U.S.C.A. § 2254), Federal Habeas Corpus Practice and

Procedure (2 volumes with 2000 supplement), and Post-Conviction Relief Forms

(including Habeas Corpus). R. Vol. I at 268-69. 1

       The Supreme Court in Lewis clarified that prisoners do not have “an

abstract, freestanding right to a law library or legal assistance,” 518 U.S. at 351,


       1
         On appeal, Mr. Garcia asserts for the first time that the State failed to
make a copy of AEDPA available to him. R. Vol. I at 273-74. But this
contradicts his own submission to the district court in which he admitted access to
certain legal texts and reference books, including AEDPA. R. Vol. I at 269.

                                          -3-
but rather a “right of access to the courts,” id. at 350. In order to establish a

constitutional violation of this right of access, an inmate must “demonstrate that

the alleged shortcomings in the library or legal assistance program hindered his

efforts to pursue a legal claim.” Id. at 351. Even construing Mr. Garcia’s

submissions liberally, he has “provided no specificity regarding the alleged lack

of access.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (“It is not enough

to say that the Minnesota facility lacked all relevant statutes and case law or that

the procedure to request specific materials was inadequate.”). Mr. Garcia does

not explain how the Legal Access Program, which provides form packets, staff

assistance in filling out forms, and a number of legal texts and resource materials,

hindered his ability to file a timely habeas petition. Cf. Weibley v. Kaiser, 50

Fed. App’x. 399, 403 (10th Cir. 2002) (holding that petitioner’s “claim is

insufficient because he does not allege specific facts that demonstrate how his

alleged denial of [legal] materials impeded his ability to file a federal habeas

petition” and therefore is not entitled to statutory tolling); United States v.

Martinez, 303 Fed. App’x. 590, 596 (10th Cir. 2008) (“Mr. Martinez has not

provided this Court with specific details regarding what restrictions actually were

placed on his access to legal materials or how such restrictions hindered his

ability to file his § 2255 motion” and therefore is not entitled to equitable tolling).

Indeed, Mr. Garcia seems to allege only that the Legal Access Program prevented

him from doing “any type of adequate research” in preparing his state and federal

                                          -4-
petitions. R. Vol. I at 264 (emphasis added). 28 U.S.C. § 2244(d)(1)(B),

however, applies only when a state-created “impediment” “prevented” an inmate

from filing his application. While the quality of Mr. Garcia’s petition might have

been improved with greater legal assistance, there is no basis in the record before

us to believe that Mr. Garcia was incapable of filing a timely habeas petition

given the resources available through the Legal Access Program. 2

      Because reasonable jurists could not debate that Mr. Garcia’s petition is

time-barred, Mr. Garcia’s request for a COA is denied, and this appeal is

dismissed.

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




      2
          On appeal, Mr. Garcia seeks to argue for the first time that he was
impeded in filing a timely petition by his difficulties with the English language.
We do not normally consider arguments raised for the first time on appeal. Even
if we were to consider the argument, however, Mr. Garcia does not explain how,
even assuming without deciding this impediment is chargeable to the State under
§ 2244(d)(1)(B), the materials (including a Spanish law dictionary) and staff
assistance provided to him were insufficient to enable him to file a timely
petition.

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