                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       December 7, 2005
                                TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 05-2018
 v.                                         (D.C. Nos. CIV-04-1264 BB/DJS and
                                                        CR-01-782)
 CARMERINA GALLARZO DE                                   (D.N.M.)
 GARCIA,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and, TYMKOVICH, Circuit Judges.


      Petitioner-Appellant Camerina Gallarzo de Garcia, a federal inmate

appearing pro se, seeks a certificate of appealability (“COA”) so that she may

appeal the district court’s denial of her 28 U.S.C. § 2255 motion to vacate, set

aside or correct her federal sentence. Because we determine that she has not

made a “substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny her request

for a COA and dismiss the appeal.

      Ms. Gallarzo de Garcia was convicted of possession with intent to

distribute 100 kilograms and more of marijuana in violation of 21 U.S.C.
§ 841(b)(1)(B), and was sentenced to sixty months imprisonment and four years

supervised release. The district court entered judgment on the conviction on June

12, 2002. No direct appeal was filed.

      On November 3, 2004, Ms. Gallarzo de Garcia filed her § 2255 motion

claiming (1) that her trial counsel provided ineffective assistance, and (2) that she

was sentenced based on a drug quantity not found by a jury or admitted to by her

in violation of Blakely v. Washington, 542 U.S. 296 (2004). The district court

denied Ms. Gallarzo de Garcia’s § 2255 petition, finding that her ineffective

assistance of counsel claim was untimely and that Blakely did not apply on

collateral review, citing Leonard v. United States, 383 F.3d 1146, 1147-48 (10th

Cir. 2004).

      Where the district court denies a § 2255 motion on procedural grounds, a

COA should issue when the petitioner “shows, at least, 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, 529 U.S. at 484.

Where the district court denies the motion on the merits, a COA should issue

when the petitioner “demonstrate[s] that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Id.

      Although Ms. Gallarzo de Garcia argues that counsel was ineffective for


                                         -2-
failing to recognize the significance of various cases suggesting the result in

Blakely, no reasonable jurist would disagree with the district court’s conclusion

that her § 2255 motion was outside the one-year limitation period. See 28 U.S.C.

§ 2255. That period runs from the date on which the judgment of conviction

becomes final. Clay v. United States, 537 U.S. 522, 524 (2003). Because Ms.

Gallarzo de Garcia did not file a direct appeal, her conviction became final ten

days after the judgment was entered on June 12, 2002, or on Monday, June 24,

2002. See Fed. R. App. P. 4(b)(1)(A)(i) (notice of appeal must be filed within ten

days after entry of judgment); 4(b)(6) (judgment is entered when entered on

criminal docket); 26(a)(3) (excluding last day if a Saturday, Sunday or legal

holiday). 1 Thus, Ms. Gallarzo de Garcia had until June 24, 2003, to file her

§ 2255 motion. 2 Reasonable jurists would not debate the district court’s

conclusion that Ms. Gallarzo de Garcia’s motion filed November 3, 2004, was

untimely, and her claim is not adequate to require further proceedings.




      1
        Ms. Gallarzo de Garcia’s judgment of conviction was entered prior to the
December 1, 2002, amendment to Fed. R. App. P. 26, which now provides that
intermediate Saturdays, Sundays and legal holidays are excluded when the period
is less than 11 days. Fed. R. App. P. 26(b)(2).
      2
       Ms. Gallarzo de Garcia did not argue in the district court or on appeal that
the one-year limitations period should be tolled; thus, we will not consider
whether she should be entitled to equitable tolling.

                                         -3-
We GRANT IFP status, DENY a COA, and DISMISS this appeal.


                           Entered for the Court


                           Paul J. Kelly, Jr.
                           Circuit Judge




                             -4-
05-2018 United States of America v. Gallarzo de Garcia
O’BRIEN, concurring and dissenting.

      I join that part of the order denying a COA and dismissing this case. I

dissent from the grant of in forma pauperis status.

      The district court denied petitioner’s request for leave to appeal in forma

pauperis after concluding that “Petitioner has no reasoned, non-frivolous

argument in law or fact.” That is the functional equivalent of a certification that

the appeal is “not taken in good faith.” 28 U.S.C. § 1915(a)(3). The district court

was correct. The petition is merely a rehash of frivolous arguments presented to

and rejected by the district court; they fly in the face of settled law and contain no

reasoned argument for a modification or reversal of that law. Congress sought to

limit frivolous prisoner appeals by exempting them from the fee waivers. We are

bound by that directive.
