F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 20 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
ELMOTIES BURROW,
Petitioner - Appellant, No. 98-1229
v. (D.C. No. 98-D-378)
DONICE NEAL and ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining Petitioner-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument.
Petitioner is a Colorado state prisoner. He was convicted by a jury in state
*
This order and judgment is not binding precedent, except under the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. 36.3.
court on December 15, 1998, of first degree murder, first degree assault, first
degree sexual assault, aggravated robbery, and third degree assault. He was
sentenced to seventy (70) years’ imprisonment. His direct appeal was denied on
August 23, 1990, and his post-conviction motion filed pursuant to Colorado Rule
of Criminal Procedure 35(c) was denied as untimely on November 24, 1994.
Proceeding pro se, Petitioner filed a 28 U.S.C. § 2254 petition for writ of
habeas corpus asserting a claim of ineffective assistance of counsel. The district
court denied the petition as barred by the one-year limitation period in 28 U.S.C.
§ 2244(d)(1), denied Petitioner’s accompanying motion for appointment of
counsel as moot, and dismissed the action. The district court also denied
Petitioner a certificate of appealability and denied his motion for leave to proceed
on appeal pursuant to 28 U.S.C. § 1915. Petitioner now requests this court to
issue a certificate of appealability so that he may appeal the district court’s
dismissal of his section 2254 habeas corpus petition. As part of his pro se brief,
Petitioner also moves this court to allow him to proceed on appeal in forma
pauperis.
We issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In his application and brief for a certificate of appealability,
Petitioner attempts to make a substantial showing of the denial of two
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constitutional rights: ineffective assistance of counsel and a deficient “Curtis
Advisement Hearing at trial on his constitutional right to testify.” Petitioner’s
Opening Br. at 11-12. He does not dispute, however, the court’s determination
that his petition filed under 28 U.S.C. § 2254 was time-barred by section 2244(d).
After thoroughly reviewing the record and Petitioner’s brief, we can discern
no error in the district court’s determination that Petitioner’s habeas corpus
petition was time-barred. Because Petitioner’s conviction became final well
before April 24, 1996, he had until April 23, 1997, to file a petition pursuant to
28 U.S.C. § 2254. 1 See 28 U.S.C. § 2244(d)(1)(A); United States v. Simmonds,
111 F.3d 737, 746 (10th Cir. 1997). Petitioner filed his Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 on February 6, 1998. Therefore, his
habeas corpus petition was untimely and there is no justification for granting a
certificate of appealability.
Accordingly, we deny Petitioner’s application for a certificate of
appealability and dismiss this appeal. We also deny Petitioner’s motion for leave
to proceed on appeal in forma pauperis.
1
Petitioner has not alleged, and we see no evidence suggesting, that the
tolling provision in 28 U.S.C. § 2244(d)(2) or the provisions in subsections B, C,
and D of 28 U.S.C. § 2244(d)(1) have any role whatsoever in this case.
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DENIED and DISMISSED.
Entered for the Court
Monroe McKay
Circuit Judge
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