                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   November 8, 2007
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 DAVID J. GARCIA,

          Petitioner-Appellant,
 v.

 L. ARCHULETA, Warden, and                              No. 07-1376
 JOHN W. SUTHERS, Attorney                      (D.C. No. 07-cv-01574-ZLW)
 General of the State of Colorado,                        (D. Colo)

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      David J. Garcia, an inmate proceeding pro se, seeks a certificate of

appealability (“COA”) to review the district court’s dismissal of his petition for

habeas corpus. Agreeing with the district court that Mr. Garcia’s petition is

untimely, we deny his request for a COA and dismiss this appeal.

                                       ***

      In 1997, Mr. Garcia was convicted by a Colorado jury of first degree

assault with a deadly weapon and felony menacing. He was also adjudicated an


      *
        This order is not binding precedent except under the doctrines of law of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.
habitual offender and ultimately sentenced to 64 years in prison. See Colo. Rev.

Stat. §§ 18-1.3-801, 18-1.3-401. His conviction was affirmed on appeal. He did

not file a petition for certiorari from the Colorado Supreme Court, and the

mandate issued finalizing his sentence on March 31, 1999.

      More than two-and-a-half years later, on October 11, 2001, Mr. Garcia filed

a pro se motion in state court seeking appointment of counsel to assist him in

filing a state post-conviction petition. He charged error in the initial criminal

proceedings and alleged that his counsel was ineffective. In the alternative, Mr.

Garcia requested that the court consider his motion as one for post-conviction

relief. The state court honored Mr. Garcia’s alternative request, treated his

motion as one for post-conviction relief under Colorado Criminal Procedure Rule

35(c), and summarily denied it. Mr. Garcia did not appeal that order, but filed a

separate pro se Rule 35(c) motion. That, too, was denied; the court of appeals

affirmed, and the Colorado Supreme Court denied certiorari.

      Mr. Garcia sought post-conviction relief from the Colorado state court once

more in September 2006. This petition was, too, denied. On appeal, the court of

appeals affirmed, noting that the petition was time-barred and successive; the

Colorado Supreme Court again denied certiorari.

      Mr. Garcia then shifted his attention to federal court and filed a petition for

a writ of habeas corpus under 28 U.S.C. § 2254 in the District of Colorado. In his

federal petition, Mr. Garcia asserted four claims – ineffective assistance of trial

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counsel, ineffective assistance of appellate counsel, denial of proportionality

review of his sentence as an habitual offender, and trial court error in applying

the habitual criminal sentence enhancement provisions of Colorado law.

      The magistrate judge noted that Mr. Garcia apparently had not pursued the

second and third of these claims in state court as required by our precedent, see,

e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999), Dever v. Kansas State

Penitentiary, 36 F.3d 1532, 1534 (10th Cir. 1994), and that all four claims

appeared to have been filed well outside the one-year limitations period codified

in 28 U.S.C. § 2244(d). Accordingly, the magistrate judge issued an order to

show cause why the petition should not be dismissed for failure to exhaust state

remedies or for failure to file within the limitations period.

      After reviewing Mr. Garcia’s response, the district court dismissed his

petition as untimely without reaching the question of the exhaustion of state

remedies. The district court reasoned that, even assuming Mr. Garcia’s initial

motion for post-conviction relief tolled the statute of limitations, that motion was

filed after the statutory period expired. The district court further found no

grounds for equitably tolling Mr. Garcia’s claims. After entering its order, the

district court denied Mr. Garcia a COA to bring his appeal to this court and

further denied his petition to proceed in forma pauperis. The district court found

that Mr. Garcia had not made a substantial showing of the denial of a

constitutional right, nor presented any non-frivolous argument in support of the

                                          -3-
issues raised on appeal.

                                         ***

      We may issue a COA only if Mr. Garcia has made a substantial showing of

the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the

district court dismissed his petition on procedural grounds, Mr. Garcia must also

show that “jurists of reason would find it debatable” whether his claim was time-

barred. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Even viewing Mr. Garcia’s

application with the generosity due pro se filings, see Andrews v. Heaton, 483

F.3d 1070, 1076 (10th Cir.2007), we cannot find that he has met that burden.

      Under federal law, a criminal defendant must seek a writ of habeas corpus

within one year of the date that his conviction became final. See 28 U.S.C.

§ 2244(d). Even assuming that Mr. Garcia’s October 2001 motion tolled the

limitations period, that filing was made more than one year after his conviction

became final in March 1999. Neither has Mr. Garcia offered any meritorious

reasons for this delay. Simply stating that the error is attributable to justifiable

excuse or excusable neglect is insufficient to toll the limitations period; Mr.

Garcia has pointed to no facts indicating that he diligently pursued his claims

between March 1999 and October 2001 and that the failure to file by March 2000

was caused by extraordinary circumstances beyond his control. See Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Under these circumstances, no

reasonable jurist would debate the district court’s determination that Mr. Garcia’s

                                          -4-
claims were time-barred.

                                      ***

      Mr. Garcia’s application for a COA and his request to proceed in forma

pauperis are denied. This appeal is dismissed.



                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




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