Martinez v. Jones , 550 F. App'x 675 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 7, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
FRANK EARL MARTINEZ,
Petitioner - Appellant,
No. 13-6233
v. (W.D. Oklahoma)
(D.C. No. 5:12-CV-00398-M)
JUSTIN JONES,
Respondent - Appellee.
ORDER *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Mr. Frank Earl Martinez was convicted in state court on charges of: (1)
distribution of a controlled substance within 2000 feet of a public park, and (2)
trafficking in illegal drugs. He applies for a certificate of appealability, and we
deny the request.
Following the conviction, Mr. Martinez unsuccessfully appealed in state
court. He then sought habeas relief in federal district court, challenging the
sufficiency of the evidence on both charges. A United States Magistrate Judge
issued a report, recommending denial of habeas relief and setting a deadline for
*
This order does not constitute precedent. 10th Cir. R. 32.1(A).
objections of September 9, 2013. On that day, Mr. Martinez filed an application
for an extension of time; eight days later, he filed an objection to the magistrate
judge’s report. The federal district judge did not rule on the request for an
extension of time. Nonetheless, the district judge conducted de novo review and
adopted the magistrate judge’s recommendation to deny habeas relief. This ruling
led Mr. Martinez to apply for a certificate of appealability, which is required for
an appeal. See 28 U.S.C. § 2253(c)(1)(A) (2006).
We can issue a certificate of appealability only if Mr. Martinez has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2006).
In the application for a certificate of appealability, Mr. Martinez argues
only that his extension request was timely and that the district judge should not
have regarded the objections as waived. Thus, Mr. Martinez asks us to “remand
with directions that the District court conduct a de novo review of the magistrate’s
report.” Appellant’s Combined Opening Br. and App. for a Certificate of
Appealability at 7 (Dec. 9, 2013).
The problem with the argument is that the district judge did not regard the
objections as waived. Though the district judge commented in passing that the
objection was filed eight days after the deadline, she did not say that the
objections were waived. Thus, the district judge noted that she had reviewed the
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magistrate judge’s report de novo. And, as noted, Mr. Martinez has asked us only
to remand the matter to the district judge to conduct de novo review.
Mr. Martinez appears pro se; as a result, we liberally construe his
application for a certificate of appealability. See Hall v. Scott, 292 F.3d 1264,
1266 (10th Cir. 2002) (“Because Hall has filed his application for a COA pro se,
we construe his petition liberally.”). But, we cannot advocate on his behalf or
invent arguments that he has not made. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (“[W]e do not believe it is the proper function of the district court
to assume the role of advocate for the pro se litigant.”); In re Antrobus, 563 F.3d
1092, 1099 (10th Cir. 2009) (“Under our rules we are not permitted to invent
arguments even for pro se litigants.”). Mr. Martinez has presented only one
argument, which is based on a misreading of the district judge’s order. And the
district judge has already given Mr. Martinez what he has requested: de novo
review of the magistrate judge’s report.
Accordingly, we conclude that Mr. Martinez has not satisfied the
requirements for a certificate of appealability and deny his request. Having
decided to deny a certificate of appealability, we must dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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