FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 11, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JAM ES K. COOPER,
No. 07-6179
Petitioner - A ppellant,
v. W .D. Okla.
JUSTIN JONES, Director, (D.C. No. 06-CV -1415-HE)
Respondent - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
James K. Cooper (Cooper) pled guilty to several drug and theft-related
charged in M arch 2005. He was sentenced to four 10-year terms and a one-year
term for his convictions. Cooper did not seek post-conviction relief in state court
until M ay 18, 2006, which was denied as untimely. The state court’s denial was
subsequently affirmed by the O klahoma Court of Criminal Appeals. Cooper,
appearing pro se, 1 then filed his Petition for a W rit of Habeas Corpus pursuant to
28 U.S.C. § 2254 on December 21, 2006, in the United States District Court for
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
the W estern District of Oklahoma. The petition was dismissed due to untimely
filing. Cooper’s argument for equitable tolling was specifically discussed and
rejected by the district judge.
Cooper moved for leave to proceed in forma pauperis (ifp) on appeal and
applied for a Certificate of Appealability (COA). The district court granted his
ifp request, but denied a COA.
Cooper renews his request for a COA application in this Court. See 28
U.S.C. § 2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1). A COA is a jurisdictional
prerequisite to our review. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). W e
will issue a CO A only if Cooper makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this show ing, he must
establish “reasonable jurists could debate whether . . . the petition should have
been resolved [by the district court] 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, 484 (2000) (internal quotations and citations omitted).
In his application, Cooper argues the merits of his § 2254 petition, but does not
address the reason it w as dismissed – untimeliness.
W e have carefully reviewed Cooper’s arguments and agree with the district
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court. His petition is barred by the time limitations set forth in 28 U.S. C.
§ 2244(d)(1) and is not subject to equitable tolling.
W e D EN Y Cooper’s application for a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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