                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 9, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT


BRUCE A. THOMPSON,

              Petitioner-Appellant,                      No. 13-1493
v.                                                      (D. Colorado)
STEVE HARTLEY, Warden;                          (D.C. No. 1:13-CV-02039-LTB)
JOHN SUTHERS, Attorney General of
the State of Colorado,

              Respondents-Appellees.


                                      ORDER


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      This habeas action is brought by Mr. Bruce Thompson, who was convicted

in Colorado state court in 1997. Sixteen years later, he brought this action for

habeas relief. Because of the delay, the federal district court denied habeas relief

on the ground that it was barred by the statute of limitations. Disagreeing with

this ruling, Mr. Thompson wants to appeal. To do so, however, he must obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2006). This

certificate was refused by the district court, prompting Mr. Thompson to ask us for

one. This request is denied.

      The certificate is permissible only if the district court’s ruling on the statute

of limitations was at least debatable. See Woodward v. Cline, 693 F.3d 1289, 1292
(10th Cir.) (stating that when the district court dismissed a habeas action on

timeliness grounds, the court of appeals could grant a certificate of appealability

only if the ruling was debatable), cert. denied, __ U.S. __, 133 S. Ct. 669 (2012).

The ruling here is not debatable because the limitations period is only one year

and Mr. Thompson waited much longer than that. See 28 U.S.C. § 2244(d)(1)

(2006).

      Ordinarily, the one-year period starts when the conviction becomes final.

See 28 U.S.C. § 2244(d)(1)(A) (2006). Exceptions exist, but none apply here. See

28 U.S.C. § 2244(d)(1)(B)-(D) (2006). Thus, we begin by determining when Mr.

Thompson’s conviction became final. That date fell in 1997, when Mr. Thompson

let the deadline expire for a direct appeal. See Gonzalez v. Thaler, __ U.S. __, 132

S. Ct. 641, 646 (2012) (holding “that, for a state prisoner who does not seek

review in a State’s highest court, the judgment becomes ‘final’ on the date that the

time for seeking such review expires”); Colo. App. R. 4(b) (1995) (45-day period

for an appeal). The one-year deadline ended in 1998, but he waited until 2007

before challenging the conviction in any court.

      Mr. Thompson acknowledges that he waited beyond the one-year period.

But, he contends that the one-year period did not start until 2012, when the

Colorado Court of Appeals issued the mandate on an appeal involving denial of a

motion for a sentence reduction. This contention is misguided. Under federal

law, the limitations period starts when the conviction becomes final, not when the

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state court decided a motion for a sentence reduction. See 28 U.S.C.

§ 2244(d)(1)(A) (2006).

      Mr. Thompson also urges equitable tolling for 29 days because of

lockdowns in 2012 and 2013. Ordinarily, we would decline to entertain this

argument because Mr. Thompson did not allege equitable tolling when given the

opportunity to reply to the Respondents’ filing. See Coppage v. McKune, 534 F.3d

1279, 1282 (10th Cir. 2008) (declining to address arguments for equitable tolling

because they had not been “presented to the district court in response to the

government’s motion to dismiss”). But even if we were to entertain the argument,

it would not help Mr. Thompson. Once the conviction became final, he waited ten

years to seek relief in state court and sixteen years to seek relief in federal court.

An extra 29 days would do little good for Mr. Thompson.

      The habeas action is out-of-time, and the district court’s ruling is not

debatable. Thus, we decline to issue a certificate of appealability. And, in the

absence of this certificate, we must dismiss the appeal.


                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge




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