                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 27, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 FRANKLIN KEMP,

              Petitioner - Appellant,                    No. 11-1155
       v.                                               (D. Colorado)
 BRIGHAM SLOAM, Warden; THE                    (D.C. No. 1:11-CV-00420-LTB)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Franklin Kemp (Defendant), a Colorado prisoner, filed an application for

relief under 28 U.S.C. § 2254 in the United States District Court for the District

of Colorado. The court denied the application as untimely. Defendant seeks a

certificate of appealability (COA) from this court to appeal the denial. See

28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254

application). We deny his application for a COA and dismiss the appeal.

I.    BACKGROUND

      A jury convicted Defendant in 1999 on two counts of incest, two counts of

sexual assault on a child, and one count of contributing to the delinquency of a

minor. He was sentenced to 42 years’ imprisonment. The Colorado Court of
Appeals affirmed the judgment and the Colorado Supreme Court denied his

petition for certiorari on August 19, 2002. He apparently did not seek review in

the United States Supreme Court. On December 20, 2002, Defendant filed a

motion for sentence reconsideration, which the trial court denied on April 14,

2003. He did not appeal the order.

        Defendant filed no further pleadings seeking relief until about three years

later, when he filed a motion to correct illegal sentence on April 6, 2006. That

was the first of repeated unsuccessful motions in state court to correct or vacate

his sentence. The trial court’s final denial of such a motion was on December 3,

2010.

        On February 18, 2011, Defendant filed his § 2254 application in federal

court. He raised six claims of ineffective assistance of trial counsel: failure to

proffer exculpatory evidence, failure to cross-examine witnesses, failure to

investigate the case, failure to subpoena and interview key witnesses,

misrepresentation of material facts, and failure to raise the issue of insufficient

evidence at trial. Defendant also claimed that the district attorney maliciously

prosecuted the case with no physical evidence and that the trial judge’s refusal to

grant a mistrial constituted judicial misconduct. Finally, Defendant alleged that

his appellate counsel was ineffective for not presenting these claims on appeal.

        The district court dismissed the petition as time-barred under 28 U.S.C.

§ 2244(d). It said that the limitation period first started running when

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Defendant’s conviction became final on November 17, 2002, ninety days after the

Colorado Supreme Court denied certiorari review. Although the one-year

limitation period was tolled from December 20, 2002, to April 14, 2003, while

state postconviction proceedings were pending, the clock then “ran for almost

three years until April 6, 2006, when [Defendant] filed a motion to correct illegal

sentence. At that point, however, the one-year period had already expired.” R. at

186–87 (Order of Dismissal at 5–6, Kemp v. Sloam, No. 11-cv-00420-BNB (D.

Colo. April 5, 2011) (emphasis omitted).

      The district court also considered whether it could toll the limitation period

for equitable reasons. Defendant argued in his “Pre-Answer” brief to the district

court that he has a learning disability and suffers from illiteracy. But the court,

citing Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (dyslexia does not

justify tolling), ruled that these personal limitations do not constitute grounds for

equitable tolling.

      In this court, Defendant claims only that defense counsel was ineffective in

failing to consult with him and investigate the case, and that the trial judge’s

refusal to declare a mistrial constituted judicial misconduct. Citing Trustees of

Dartmouth College v. Woodward, 17 U.S. 518 (1819), he argues that both defense

counsel and the state trial judge failed to perform duties expected of them under

an implied contract to serve their fellow citizens. His pleadings do not address

the timeliness of his § 2254 application.

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II.    DISCUSSION

       When the district court denies a habeas petition on procedural
       grounds without reaching the prisoner’s underlying constitutional
       claim, a COA should issue when the prisoner shows, at least, that
       jurists of reason would find it debatable whether the petition states a
       valid claim of the denial of a constitutional right and that jurists of
       reason would find it debatable whether the district court was correct
       in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Each component of the . . .

showing is part of a threshold inquiry, and a court may find that it can dispose of

the application in a fair and prompt manner if it proceeds first to resolve the issue

whose answer is more apparent from the record and arguments.” Id. at 485.

       Here, no reasonable jurist could dispute that Defendant’s § 2254

application was untimely.

III.   CONCLUSION

       We DENY Defendant’s application for a COA and DISMISS the appeal.

We also DENY his motion to proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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