Burrow v. Neal

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This order and judgment is not binding precedent, except under the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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