F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 17, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-1360
v. (D . of Colo.)
W ILLIAM DEA N DAVIS, (D.C. Nos. 06-CV-1147-LTB and
03-CR-11-LTB)
Defendant-Appellant.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
W illiam D ean Davis, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) that would allow him to appeal from the district
court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28
U.S.C. § 2253(c)(1)(B). Because we conclude that M r. Davis has failed to make
“a substantial show ing 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).
Background
On April 11, 2003, M r. Davis pleaded guilty to possession of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
and (b)(1)(viii) and to possession of a firearm during comm ission of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A). His conviction became final
on July 9, 2003. His brother and co-defendant, Don W ayne Davis, did not plead
guilty, but instead challenged the admission of the evidence obtained in the
search. In M arch 2006, the United States District Court for the District of
Colorado found that the warrant authorizing law enforcement to search the
Davis’s home was invalid and excluded the evidence obtained in the search. As a
result, the government dropped the charges against Don.
On June 15, 2006, not quite three years after his conviction became final,
M r. D avis filed a petition under 28 U.S.C. § 2255 raising two claims. He
contended that law enforcement violated his constitutional right against
unreasonable searches and seizures and that he received ineffective assistance of
counsel. The district court dismissed his petition as untimely because it was not
filed within the AEDPA one-year statute of limitations. The court also held that
M r. Davis was not entitled to equitable tolling.
Discussion
A habeas petitioner may appeal the denial of his § 2255 motion only if the
district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A
COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a petitioner must demonstrate that “reasonable jurists could debate
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whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks
omitted). W e find no room to debate here.
AEDPA requires a federal prisoner to file for federal habeas relief within
one year after his conviction becomes final or within one year after “the facts
supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2255(4). Though the one-year statute of
limitations may be subject to equitable tolling, such relief “is only available when
an inmate diligently pursues his claims and demonstrates that the failure to timely
file was caused by extraordinary circumstances beyond his control.” M arsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
The facts supporting M r. Davis’s claims of an unconstitutional search and
ineffective assistance of counsel could have been discovered through the exercise
of due diligence at any time after his conviction became final. M r. Davis argues
that ignorance of the filing deadline prevented him from filing his petition earlier.
However, “ignorance of the law , even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.” Id. at 1220 (internal quotations
omitted). He also argues that because the court mailed him the requisite forms to
fill out his § 2255 petition, it effectively gave him permission to file such a
petition regardless of AEDPA constraints. He cites no authority to support this
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proposition. M erely providing a petitioner with court forms does not grant
permission for late filing of a habeas petition. Reasonable jurists would agree
that the AEDPA one-year filing deadline forecloses M r. Davis’s habeas corpus
petition.
Conclusion
Accordingly, we D EN Y M r. Davis’s request for a COA and DISM ISS this
appeal. Appellant’s motion to proceed in form a pauperis is also DENIED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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