F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 17 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
CHARLES D. TRUJILLO,
Petitioner - Appellant,
v. No. 02-1518
(D.C. No. 01-MK-1699)
GARY NEET, Warden; ATTORNEY (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
Charles D. Trujillo applies pro se for a certificate of appealability 1 (COA)
to permit him to appeal the district court’s denial of his petition for writ of habeas
corpus under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §
2253(c)(1), we see no basis for an appeal and deny a COA.
After examining 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)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
1
See 28 U.S.C. § 2253(c)(1).
Mr. Trujillo was sentenced on June 14, 1996, after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA’s
one-year period of limitation applies to his case. See 28 U.S.C. § 2244(d)(1)(A).
Mr. Trujillo’s conviction and sentence became final on July 29, 1996, so unless
tolled by the pendency of a properly filed application for state post-conviction or
other collateral reivew, he had one year from that date to petition for habeas
corpus relief. See 28 U.S.C. § 2244(d)(2); 28 U.S.C. § 2254. The period was
tolled for twenty-three days during the pendency of Mr. Trujillo’s motion for
sentence reconsideration in late 1996. It was not further tolled after that point
because Mr. Trujillo did not file his motion for post-conviction relief until the
end of 1998, well after the expiration of the one-year limitation period. Nor has
Mr. Trujillo shown any circumstances sufficient to warrant equitable tolling. See
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable tolling permitted
only in rare and exceptional circumstances).
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 123 S. Ct. 1029,
1039 (2003). A COA can issue only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
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to proceed further.” Miller-El, 123 S. Ct. at 1034. When a district court has
dismissed a habeas petition on procedural grounds, in addition to the above
showing a prisoner must also show that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “The COA determination under § 2253(c)
requires an overview of the claims in the habeas petition and a general assessment
of their merits.” Miller-El, 123 S.Ct. at 1039. “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in support of the
claims. In fact, the statute forbids it.” Id. While Mr. Trujillo, in applying for a
COA, is not required to prove the merits of his case, he must demonstrate
“something more than the absence of frivolity or the existence of mere good faith
on his [or her] part.” Id. at 1040 (internal quotations and citation omitted).
With these principles in mind, we have carefully reviewed the record and
conclude that reasonable jurists would not debate the district court’s procedural
ruling as to the untimeliness of Mr. Trujillo’s petition.
Mr. Trujillo has also filed a motion for leave to proceed in forma pauperis.
Because he has not shown the existence of a reasoned, nonfrivolous argument on
the law and the facts in support of reversing the district court’s dismissal of his
petition, however, we deny him in forma pauperis status. See DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
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Accordingly, we DENY the request for a certificate of appealability,
DENY the motion to proceed in forma pauperis, and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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