                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      November 23, 2010
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


 SCOTT FIRTH,

               Petitioner - Appellant,

        v.                                                     No. 10-1292
                                                    (D. Ct. No. 1:09-CV-03000-ZLW)
 RICHARD SMELSER; JOHN W.                                       (D. Colo.)
 SUTHERS, Attorney General of the State
 of Colorado,

               Respondents- Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Petitioner-appellant Scott Firth, a state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) so that he may challenge the district court’s denial of

his petition for habeas corpus, which he brought pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(c)(1)(A), DENY Mr. Firth’s request for a

COA, and DISMISS his appeal.
                                   I. BACKGROUND

       In 2003, Mr. Firth pleaded guilty to one count of sexual assault on a child fifteen to

seventeen years of age by one in a position of trust. On May 19, 2003, he was sentenced

to 60 days’ imprisonment and probation for an indeterminate term. Condition 16 of Mr.

Firth’s probation required that he “attend and actively participate in a sex offender

evaluation and treatment program approved by the probation officer . . . abide by the rules

of the treatment program . . . and [] successfully complete the program to the satisfaction

of the probation officer and the treatment provider.”

       On December 23, 2003, while he was participating in the treatment program

required by his terms of probation, Mr. Firth’s treatment providers transferred him to a

more restrictive program due to concerns that his treatment was not progressing and that

he was still a danger to the community. Mr. Firth was displeased with the new

restrictions imposed on him and unsuccessfully sought to be transferred back to his

original treatment program. Apparently, Mr. Firth’s displeasure with his new program

precipitated problems with his treatment, and on February 24, 2004, he was terminated

from the program because of “his unwillingness to engage in the treatment program in a

meaningful way.”

       The same day, Mr. Firth’s probation officer petitioned to revoke his probation on

the grounds that he failed to complete treatment and that he had been in possession of a

knife. On March 26, 2004, Mr. Firth’s probation was revoked, and on April 5, 2004, he

was sentenced to an indeterminate term of imprisonment of not less than six years. Mr.

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Firth did not directly appeal the revocation of his probation or the sentence imposed upon

revocation. He did, however, file a motion for reconsideration on August 3, 2004, which

was denied on September 28, 2004.

       Mr. Firth did not file any other motions or appeals until April 20, 2006, at which

point he filed a petition for state post-conviction relief under Colo. R. Crim. P. 35(c). His

petition was denied on September 27, 2006, and that denial was affirmed by the Colorado

Court of Appeals on September 4, 2008. The Colorado Supreme Court denied certiorari

on April 13, 2009.

       Mr. Firth filed the instant habeas petition on December 29, 2009, raising multiple

constitutional challenges to the conditions and the revocation of his probation. He

amended his petition on February 5, 2010, and respondents argued that the petition was

untimely.

       The district court determined that the one-year statute of limitations under 28

U.S.C. § 2244(d) began to run on May 20, 2004, forty-five days after Mr. Firth was

sentenced pursuant to the revocation of his probation. Excluding the time during which

Mr. Firth’s motions for reconsideration and state post-conviction relief were pending, the

court determined that 904 days had elapsed between the time the statute of limitations

began to run and the time Mr. Firth filed his federal habeas petition. Furthermore, the

district court held that Mr. Firth failed to demonstrate any basis for equitable tolling.

Accordingly, the district court dismissed Mr. Firth’s habeas petition as untimely and

denied his request for a COA. Mr. Firth then filed a motion to reconsider, which the

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district court denied.

                                     II. DISCUSSION

       A petitioner may not appeal the denial of habeas relief under § 2254 unless he

obtains a COA. 28 U.S.C. §2253(c)(1)(A). We will issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

When, as is the case here, a district court denies habeas relief on procedural grounds, a

circuit judge may issue a COA only if the petitioner demonstrates that reasonable jurists

could debate: (1) whether the petition states a valid claim of the denial of a constitutional

right; and (2) the correctness of the district court’s procedural ruling. Id. When it is fair

and practical to do so, a court is encouraged to dispose of a petition on procedural

grounds rather than decide complex constitutional questions. Id. at 485.

       A one-year statute of limitations applies to habeas petitions filed by state prisoners.

28 U.S.C. § 2244(d)(1). This limitation period begins to run from the latest of four dates,

only two of which are relevant to this appeal. Id. The first is “the date on which the

judgment became final by the conclusion of direct review or the expiration of the time for

seeking such review.” Id. § 2244(d)(1)(A). The second is “the date on which the factual

predicate of the claim . . . could have been discovered through the exercise of due

diligence.” Id. § 2244(d)(1)(D).

       This one-year limitation period is statutorily tolled for “[t]he time during which a

properly filed application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). Additionally, the

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limitation period is subject to equitable tolling “in rare and exceptional circumstances.”

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations omitted). Such

exceptional circumstances include when a prisoner is actually innocent and when

uncontrollable circumstances prevent a timely filing. Id.

       Mr. Firth’s habeas petition challenges the revocation of his probation and the

consequent sentence. We agree with the district court that because Mr. Firth did not

directly appeal the revocation of his probation, the relevant judgment became final on

May 20, 2004. See 28 U.S.C. § 2244(d)(1)(A) (mandating that a judgment becomes final

for purposes of the limitations period upon “the conclusion of direct review or the

expiration of the time for seeking such review”); see also Col. R. App. P. 4(b) (requiring

criminal defendants to file a notice of appeal within forty-five days of the entry of the

judgment from which they are appealing). We also agree that the limitations period was

tolled 75 days later, on August 3, 2004, when Mr. Firth filed his motion for

reconsideration, and did not begin to run again until September 28, 2004, when that

motion was denied. See Robinson v. Golder, 443 F.3d 718, 721 (10th Cir. 2006) (holding

that a properly filed motion to reconsider under Colo. R. Crim. P. 35(b) tolls the one-year

limitations period). Thus, Mr. Firth had 290 days from September 28, 2004, or in other

words, until approximately mid-July 2005, to file his habeas petition. But Mr. Firth did

not file his petition, or any other motion that would have tolled the limitations period,

until April 20, 2006—approximately nine months after the one-year limitations period

expired. Accordingly, unless Mr. Firth can either demonstrate that the limitations period

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began to run from a later date than May 20, 2004 or establish a basis for equitable tolling,

reasonable jurists could not debate the district court’s ruling that his petition was

untimely, and he is not entitled to a COA.

       In his application for a COA, Mr. Firth first argues that the limitations period did

not begin to run until September 27, 2006, when his motion for state post-conviction

relief was first denied. He contends that this date is the appropriate date from which to

assess the timeliness of his habeas petition because the court upheld the revocation of his

probation on a theory that had not been considered during his probation revocation

hearings. Accordingly, Mr. Firth contends that, even exercising due diligence, he could

not have discovered the factual predicate for his habeas claims until this date. We

disagree.

       Mr. Firth’s habeas petition raises the following five claims: (1) condition 16 of his

probation is unconstitutionally vague; (2) the revocation of his probation violated due

process because his probation officer and his treatment providers did not comply with

numerous state statutes and standards; (3) the revocation of his probation and the

consequent sentence unconstitutionally punishes him twice for the same offense; (4) he

received constitutionally deficient assistance of counsel during the probation revocation

process; and (5) the Colorado Sex Offender Lifetime Supervision Act of 1998 is

unconstitutional. It is apparent that the factual predicate for these claims could have been

discovered, at the latest, when Mr. Firth was sentenced based on the revocation of his

probation. Indeed, none of these claims are based on operative facts that occurred during

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his post-conviction challenge or at any time after he was sentenced on April 5, 2004.

Accordingly, Mr. Firth’s contention that the limitations period should run from the date

on which his motion for state post-conviction relief was first denied is plainly without

merit.

         Mr. Firth also contends that the limitations period should be equitably tolled

because: (1) he is actually innocent; and (2) uncontrollable circumstances prevented him

from timely filing his habeas petition. We disagree. First, Mr. Firth’s actual innocence

argument essentially posits that his probation should not have been revoked because he

actively participated in and abided by the rules of his treatment plan in accordance with

the conditions of his probation. Mr. Firth, however, ignores that Condition 16 also

requires that he “successfully complete” his treatment program and that he was expelled

from his treatment before he completed it. Thus, the record clearly demonstrates that Mr.

Firth is not actually innocent of the probation violation that ultimately led to the

revocation of his probation.

         Second, Mr. Firth contends that he was prevented from timely filing his habeas

petition because no lawyer would take up his criminal case until his divorce was finalized

on October 21, 2005, because it was not clear that Mr. Firth would have assets to pay

attorneys fees until that date. Mr. Firth’s inability to pay an attorney to take his criminal

case until his divorce was finalized is not a rare and exceptional circumstance that

warrants equitable tolling. Indeed, Mr. Firth ultimately filed his habeas petition pro se,

and his inability to find an attorney in no way excuses his failure to do so within the one-

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year limitations period. Accordingly, Mr. Firth’s arguments for equitable tolling are

without merit.

                                  III. CONCLUSION

      Because reasonable jurists could not debate the district court’s determination that

Mr. Firth’s habeas petition is untimely, we DENY his application for a COA and

DISMISS his appeal. Additionally, because Mr. Firth has paid his appellate filing fee in

full, we DISMISS his request to proceed in forma pauperis on appeal as moot.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




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