Scott v. Walkin

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

RAYMOND W. SCOTT,

Petitioner-Appellant, No. 05-1505
v. District of Colorado
GARY WALKIN; JOHN SUTHERS, (D.C. No. 05-CV-1732-ZLW)
The Attorney General of the
State of Colorado,

Respondents-Appellees.

ORDER *

Before MURPHY , SEYMOUR , and McCONNELL , Circuit Judges.

Raymond W. Scott, a state prisoner proceeding pro se , seeks a certificate of

appealability (COA) that would allow him to appeal the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Scott has failed to make “a

substantial showing of the denial of a constitutional right,” we DENY his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

This order is not binding precedent, except under the doctrines of law of
*

the case, res judicata, and collateral estoppel
 In 2000, before a Colorado state court, Mr. Scott pleaded guilty to first-

degree burglary, second-degree burglary, and attempted second-degree sexual

assault. He received a sentence of twenty-three years in prison and five years of

parole. The conviction was entered on March 13, 2000, and under Colorado law

Mr. Scott had 45 days after entry of the judgment to file a notice of appeal. See

Colo. App. R. 4(b)(1). Because he brought no direct appeal in state court, his

conviction became final on April 27, 2000.

Under 28 U.S.C. § 2244(d)(1), a one-year period of limitation applies to

applications for a writ of habeas corpus brought by persons in custody pursuant to

the judgment of a state court. The limitation period begins to run on the latest of

several dates, including “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

Id. § 2244(d)(1)(A). In this case, the expiration period expired on April 27, 2001.

Mr. Scott filed this petition on August 16, 2005, well outside the limitation

period. He argues that his petition is nonetheless timely because the period is

tolled during the pendency of “a properly filed application for state

postconviction review.” See id. § 2244(d)(2). Although Mr. Scott did eventually

seek postconviction relief in the Colorado courts, he waited until December 19,

2002 to do so. By that time, the limitation period for filing a petition for federal

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habeas relief had already expired. The fact that Colorado law sets a longer

limitation period to commence an action for collateral review in state court, see

Colo. Rev. Stat. § 16-5-402(1) (setting a limitation period of 3 years for all

felonies other than class 1 felonies), does not affect the one-year limit under §

2244(d)(1). Cf. Barnett v. Lemaster , 167 F.3d 1321, 1322–23 (10th Cir. 1999)

(holding that “[t]he limitations period ran unabated” prior to a petitioner’s filing

of a second petition for habeas relief in state court).

Mr. Scott’s petition is time-barred, and the district court properly denied it.

Accordingly, we DENY Raymond W. Scott’s request for a COA and DISMISS

this appeal.

Petitioner’s motion to proceed in forma pauperis is also DENIED.

Entered for the Court,

Michael W. McConnell
Circuit Judge

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