                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 19, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                    TENTH CIRCUIT                       Clerk of Court



 B RIA N D EA N WA LTO N ,

          Petitioner – Appellant,
 v.
                                                        No. 06-1275
 JOE ORTIZ, D.O.C.; KEVIN
                                                 (D.C. No. 06-CV-475-BNB)
 M ILYARD, SCF (W arden); M ARK
                                                         (D . Colo.)
 BROADDUS, SCF (Associate);
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

          Respondents – Appellees.



           OR DER DENYING A CERTIFICATE O F APPEALABILITY *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Brian D ean W alton, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his

28 U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by

the district court, we D EN Y a COA and DISM ISS.




      *
         This order is not binding precedent except under the doctrines of law of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 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
      W alton was convicted in Colorado state court of simple robbery, attempted

aggravated robbery, conspiracy to commit aggravated robbery, theft by receiving,

and five habitual criminal counts. He was sentenced to a term of life

imprisonment for each offense, with all sentences to run concurrently. The

Colorado Court of Appeals reversed his conviction for theft by receiving but

otherw ise affirmed his convictions and sentence. He filed a petition for certiorari

w ith the C olorado Supreme C ourt, which was denied on August 15, 1994. On

August 26, 1997, W alton filed a motion for post-conviction relief in state court

arguing ineffective assistance of counsel. After conducting an evidentiary

hearing on his claim, the state court denied relief. That decision was affirmed by

the C olorado Court of A ppeals. An equally divided Colorado Supreme Court

affirmed. Approximately seven months later, W alton filed a second motion for

post-conviction relief in state court, in which he argued that trial counsel had a

conflict of interest. The state trial court denied his petition as successive, and the

Colorado Court of Appeals affirmed. On August 1, 2005, the Colorado Supreme

Court denied his petition for certiorari.

      On M arch 8, 2006, W alton filed a petition for habeas relief in federal

district court. He raised two claims in his petition. First, he argued that his trial

counsel was ineffective for failing to hire an investigator or conduct adequate

discovery. Second, he argued that trial counsel’s pro bono representation created

an inherent conflict of interest because counsel would be required to pay the fees

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and costs associated with W alton’s defense. The district court ruled that his

petition was time-barred, and denied his application for a COA. Having failed to

secure a COA below, W alton now seeks a COA from this court. 1

      W alton’s conviction became final for the purposes of AEDPA ’s statute of

limitations on April 24, 1996, the date of AEDPA’s enactment. 28 U.S.C. §

2244(d); see also United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

W alton had one year from that date to file a habeas petition. § 2244(d). He did

not file his petition until M arch 8, 2006, and thus it w as untimely.

      W alton requests that we toll the statute of limitations to permit his untimely

filing. Equitable tolling is 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). Although W alton has engaged in prolonged state



      1
        W alton’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under
§ 2254 upon a grant of a CO A. 28 U.S.C. § 2253(c)(2). A COA may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires W alton to show “that
reasonable jurists could debate whether (or, for that matter, agree that) 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, 484 (2000) (quotations omitted). Because the district
court denied W alton a COA, he may not appeal the district court’s denial absent a
grant of COA by this court.

                                         -3-
litigation, he has not shown that extraordinary circumstances prevented him from

filing a timely petition. He was, in fact, able to file a motion in state court for

post-conviction relief shortly after the federal deadline expired. Our review of

the record reveals no change in his circumstances that prevented the filing of a

federal petition.

      Accordingly, W alton’s application for a COA is DENIED and the appeal is

DISM ISSED. W alton’s motion to proceed in forma pauperis is GR ANTED .



                                                ENTERED FOR THE COURT



                                                Carlos F Lucero
                                                Circuit Judge




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