                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   July 25, 2013
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 MICHAEL ORLANDO ROLLIE,

              Petitioner - Appellant,
                                                        No. 13-1248
 v.                                            (D.C. No. 1:12-CV-02120-LTB)
                                                         D. Colorado
 FRANCES FALK, and THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 32.1.
      Petitioner and Colorado state prisoner, Michael Orlando Rollie, proceeding

pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the

dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus. His

§ 2254 application challenged the validity of his conviction in a Colorado state

court case. Concluding that Mr. Rollie has failed to demonstrate that he is

entitled to the issuance of a COA, we deny him a COA and dismiss this matter.



                                BACKGROUND

      As noted by the district court, the Colorado Court of Appeals summarized

the lengthy state court proceedings in the relevant Colorado case (Boulder County

district court case No. 96CR677) as follows:

             In November 1996, defendant was convicted on a jury verdict
      of first degree assault, third degree assault, menacing, reckless
      endangerment, prohibited use of a weapon (reckless discharge), and
      prohibited use of a weapon (possession under the influence).

            In April 1997, the trial court granted defendant’s motion for a
      new trial based on the court’s failure to instruct the jury on
      provocation. The order granting a new trial was affirmed on appeal.
      See People v. Rollie, (Colo. App. No. 97CA0850, May 7, 1998) (not
      published pursuant to C.A.R. 35(f)).

             In April 1999, defendant pleaded guilty to menacing, and, on
      June 4, 1999, the trial court sentenced him to thirty months in the
      custody of the Department of Corrections (DOC). Thereafter, the
      trial court granted defendant’s motion for reconsideration of his
      sentence under Crim. P. 35(b), reducing his sentence to eighteen
      months in the custody of the DOC.




                                        -2-
       In March 2010, defendant filed a Crim. P. 35(c) motion,
arguing that (1) his plea counsel was ineffective because he
incorrectly advised him that, if he went to trial, there would be no
possibility of an acquittal and a heat of passion instruction would
only mitigate the conviction to a class five felony; and (2) the trial
court failed to advise him of his constitutional rights and the
elements of the crime to which he pled guilty. Defendant
acknowledged that his motion was untimely but alleged there was
justifiable excuse or excusable neglect because his counsel was
ineffective and he did not know that his conviction was
constitutionally infirm.

       On June 18, 2010, the trial court denied defendant’s motion as
time barred, finding that defendant did not “allege facts which, if
true, would establish justifiable excuse or excusable neglect” because
“the ineffectiveness of his [plea] counsel [had] no bearing on the
reasonableness of [his] delay in filing a post-conviction motion.”
The court further found that neither “the lack of any ‘present need’ to
collaterally attack a prior conviction, nor the recent discovery of a
legal basis for a collateral attack, constitute[d] justifiable excuse or
excusable neglect.”

       On June 30, 2010, defendant filed a pro se “Petition for Crim.
P. 35(c) Rehearing,” requesting that the court reconsider its finding
that there was no justifiable excuse or excusable neglect for the late
filing of his Crim. P. 35(c) motion. Defendant alleged that, in a
subsequent criminal case that arose in 2006 (2006 case), the trial
court’s “fail[ure] to litigate the constitutional admissibility” of his
1999 conviction gave him the present need to challenge the
conviction under Crim. P. 35(c) and that he asked his defense
counsel in the 2006 case to file a Crim P. 35(c) motion challenging
the prior conviction but counsel did not do so.

       On August 17, 2010, the trial court denied defendant’s motion,
again finding that defendant failed to establish justifiable excuse or
excusable neglect because the allegations did not show why he could
not have filed a postconviction motion within the three-year
limitations period.

      On October 13, 2010, defendant appealed the trial court’s June
18, 2010, and August 17, 2010, orders, along with a request to accept

                                   -3-
      the notice of appeal as timely filed. On November 12, 2010, the
      motions division of this court dismissed the appeal as to the June 18,
      2010, order but accepted the notice of appeal as timely with regard to
      the August 17, 2010, order.

Order at 2-4 (quoting People v. Rollie, No. 10CA2111 (Colo. Ct. App. Dec. 22,

2011)).

      The Colorado Court of Appeals then affirmed the trial court’s denial of

Mr. Rollie’s petition for rehearing of the court order denying his postconviction

motion under Colo. R. Crim. P. 35(c). On May 29, 2012, the Colorado Supreme

Court denied certiorari.

      Mr. Rollie subsequently filed, on August 10, 2012, his original 28 U.S.C.

§ 2254 application (the instant application) in federal district court. He filed an

amended application on September 5, 2012. In his amended application, Mr.

Rollie asserted five claims, all relating to the 1996 Colorado state conviction,

No. 96CR677, and described as follows by the district court:

      (1)    The reinstatement of trial counsel after the trial court found
             counsel to be ineffective violated his Sixth and Fourteenth
             amendment rights to conflict-free counsel;
      (2)    The trial court and trial counsel failed to advise him of his
             constitutional rights pursuant to Colo. R. Crim. P. 32(c) and
             Colo. R. Crim. P. 35(c), causing the conviction in No.
             96CR677 to be constitutionally invalid;
      (3)    “The defendant has a present need pursuant to the IV ABA
             Standards for Criminal Justice § 22.2-4 (2d ed. 1986) (ABA
             Standards), when the challenged conviction, 96CR677, was
             used against him and was a factor in sentencing in his Denver
             criminal case which is pending on appeal in 08CA391”;
      (4)    “When the defendant was not allowed an opportunity to ensure
             that the unconstitutional conviction, 96CR677, was not used

                                          -4-
             against him in his Denver criminal case which is pending on
             appeal in 08CA391, his due process of law right was violated”;
      (5)    “The Defendant’s guilty plea to the menacing charge was not
             knowingly entered.”

Order at 4 (quoting Amended Application for a Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254 at 5-13; R. Vol. 1 at 50-58).

      On October 16, 2012, the magistrate judge to whom the matter had been

referred directed the Respondents (the Warden and the Colorado Attorney

General) to file a pre-answer Response limited to addressing the affirmative

defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court

remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents argued, first, that

Mr. Rollie fails to meet the “in custody” requirement under § 2254(a) because the

conviction he challenges (the 1996 conviction in case No. 96CR677) has expired,

inasmuch as he has long since completed service of his sentence, and he fails to

allege adequately any exception to that “in custody” requirement. They thus

argued that the district court lacked jurisdiction to consider Mr. Rollie’s § 2254

application. See Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004)

(“The ‘in custody’ language of § 2254 is jurisdictional and requires habeas

petitioners to be ‘in custody’ under the conviction or sentence under attack when

they file the petition.”), abrogated on other grounds, Padilla v. Kentucky, 559

U.S. 356 (2010).




                                         -5-
      Second, they argued that Mr. Rollie’s application was untimely under the

one-year statute of limitations for habeas petitions, provided by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). Finally, Respondents claimed that

Mr. Rollie had failed to exhaust his claims by fairly presenting them to the

Colorado state courts, and “any attempt to file a new motion [in state court]

would be rejected as time barred, successive, and an abuse of process [and thus]

are anticipatorily defaulted.” Pre-Answer Response at 13-14; R. Vol. 1 at 86-87. 1

      The district court subsequently dismissed Mr. Rollie’s § 2254 petition for

lack of jurisdiction and as barred by the one-year limitation period in 28 U.S.C.

§ 2254(d). The court further determined that no COA would issue “because

Applicant has not made a substantial showing of the denial of a constitutional

right.” Order at 12. Finally, the court denied leave to proceed in forma pauperis

on appeal. As indicated, Mr. Rollie now seeks a COA from our court to enable

him to appeal that order of dismissal.



                                  DISCUSSION

      “A COA is a prerequisite to appellate jurisdiction in a habeas action.”

Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if

      1
       As we have stated, “‘[a]nticipatory procedural bar’ occurs when the federal
courts apply procedural bar to an unexhausted claim that would be procedurally
barred under state law if the petitioner returned to state court to exhaust it.”
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (quoting Moore v.
Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)).

                                         -6-
the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .

constitutional claims on the[ir] merits,” the applicant “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a district court’s ruling rests on procedural grounds, the applicant must

show 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.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).

      The district court carefully and thoroughly explained why Mr. Rollie’s case

must be dismissed. It explained why the court lacked jurisdiction to review Mr.

Rollie’s petition, and, moreover, why the application was time-barred. We cannot

improve on the district court’s explanation and analysis. Mr. Rollie has failed to

develop any grounds for disagreeing or questioning that court’s discussion,

reasoning and holding. We therefore agree with the district court that, for

substantially the reasons stated by the court in its order of dismissal, Mr. Rollie

has failed to establish that he is entitled to the issuance of a COA.




                                          -7-
                               CONCLUSION

      For the foregoing reasons, we DENY Mr. Rollie a COA and DISMISS this

matter. We also DENY his request to proceed on appeal in forma pauperis.

                                           ENTERED FOR THE COURT


                                           Stephen H. Anderson
                                           Circuit Judge




                                     -8-
