F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
TIMOTHY LYNN BARKUS,
Petitioner-Appellant,
No. 99-5187
v. (N. District of Oklahoma)
(D.C. No. 98-CV-855-B)
STEPHEN KAISER,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Timothy L. Barkus, proceeding pro se, seeks a certificate of appealability
(“COA”) so that he can appeal the district court’s dismissal of his 28 U.S.C. §
*
This order and judgment is not binding precedent, except under the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.
2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal can be taken from a final order denying relief in a § 2254 proceeding
unless the petitioner first obtains a COA). The district court dismissed Barkus’
§ 2254 petition pursuant to 28 U.S.C. § 2244(d) because the petition was not
timely filed. The district court further rejected Barkus’ claim that he was entitled
to equitable tolling of the limitations period in § 2244(d), concluding that Barkus
had not diligently pursued his claims in either state or federal court and that his
lack of diligence was not excused by lack of legal training. See Miller v. Marr,
141 F.3d 976, 978 (10th Cir. 1998) (holding that equitable tolling is only
appropriate where petitioner has diligently pursued his claims); Williams v.
Boone, No. 98-6357, 1999 WL 34856, at *3 (10th Cir. 1999) (unpublished
disposition) (collecting cases for proposition that unfamiliarity with the law does
not excuse the failure to file a timely habeas petition). In his request for a COA
and appellate brief, Barkus does not contest the district court’s conclusion that his
§ 2254 petition was not timely filed. Instead, he simply asserts that the district
court erred in refusing to equitably toll the § 2244(d) limitations period.
Barkus is entitled to a COA only upon making a substantial showing of the
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Barkus can make
such a showing by demonstrating that the issues he seeks to raise are debatable
among jurist of reason, subject to a different resolution on appeal, or deserving of
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further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983). This
court has undertaken a close review of Barkus’ application for a COA and
appellate brief, the district court’s order of dismissal, and the entire record. That
close review reveals that the district court’s disposition of Barkus’ equitable
tolling request is not reasonably debatable, subject to a different resolution on
appeal, or deserving of further proceedings. Accordingly this court DENIES
Barkus’ request for a COA for substantially those reasons set out in the district
court order of dismissal dated August 25, 1999, and DISMISSES the appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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