FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 6, 2017
Elisabeth A. Shumaker
Clerk of Court
ANDREW NEIL ATKINS,
Petitioner - Appellant,
v. No. 16-1415
(D.C. No. 1:16-CV-00859-LTB)
RANDY LIND, Acting Warden; (D. Colo.)
CYNTHIA H. COFFMAN, Attorney
General for the State of Colorado,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Andrew Neil Atkins is serving a 20-year-to-life sentence in Colorado for
convictions of sexual assault upon a child. Following his unsuccessful appeal and
collateral review attempts in the Colorado courts, he applied for federal habeas relief
under 28 U.S.C. § 2254.
The district court dismissed the application with prejudice, holding it is time-
barred and not entitled to equitable tolling. Mr. Atkins moved for reconsideration under
* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Federal Rule of Civil Procedure 59(e), arguing his application should be considered
timely “due to the circumstances surrounding the Law Library schedules, ability to
photocopy any and all documents necessary . . . and the extended research necessary in
this particular case due to . . . [his] handicap.” Dist. Ct. Doc. 13 at 1-2.
The district court denied the Rule 59(e) motion because Mr. Atkins failed to
support “such conclusory allegations with specific facts” and noted such allegations, even
if supported, would not likely be “extraordinary circumstances” for equitable tolling
under Tenth Circuit case law. Dist. Ct. Doc. 14 at 3-4.
Mr. Atkins, proceeding pro se,1 argues here that his trial counsel was ineffective,
he did not receive a fair trial, and his confrontation rights were violated, Aplt. Br. at 3-
4—the same claims in his § 2254 application. But, although he states that “Applicant
filed a timely Habeas application” and “has followed every timeline set before him to
follow,” id. at 1, Mr. Atkins does not contest the district court’s analysis that he filed his
application beyond the one-year statute of limitations under 28 U.S.C. § 2244(d), much
less provide any analysis of his own, and does not mention equitable tolling at all.
Mr. Atkins must receive a certificate of appealability (“COA”) from this court to
appeal the denial of his § 2254 application. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). Exercising jurisdiction under 28 U.S.C. § 1291,
we deny Mr. Atkins a COA because he has failed to show “that jurists of reason would
1
Because Mr. Atkins appears pro se, we afford his filings a liberal construction,
see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft
arguments or otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
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find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); accord Dulworth v. Jones, 496 F.3d 1133, 1137
(10th Cir. 2007).
We also deny Mr. Atkins’s motion for in forma pauperis status and dismiss this
matter.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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