                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   April 16, 2009
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                     Clerk of Court


 KYLE LEE HOUSTON, a/k/a Delihue,

       Petitioner - Appellant,
                                                      No. 08-1439
 v.                                           (D.C. No. 08-CV-01508-ZLW)
                                                        (D. Colo.)
 KEVIN MILYARD, Warden, S.C.F.;
 JOHN SUTHERS, The Attorney
 General of the State of Colorado,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Petitioner-Appellant Kyle Lee Houston, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the denial of

his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.

The district court dismissed the action as untimely under the one-year limitation

period contained in 28 U.S.C. § 2244(d)(1). Because we agree with the district

court that Mr. Houston’s claims are time-barred, we deny his request and dismiss

the appeal.

      Mr. Houston originally pled guilty in 1992 to second degree burglary and

was sentenced to thirteen years in community corrections. I R. at 81.
Apparently, that sentence was revoked in 2004 and he was resentenced to thirteen

years of incarceration in the Colorado Department of Corrections. I R. at 82. Mr.

Houston appealed the sentence and, when that was unsuccessful, sought post-

conviction relief in state court. Mr. Houston’s last filing in state court, a petition

for a writ of habeas corpus, was denied by the Colorado Supreme Court on April

13, 2007. I R. at 97; see I R. at 105 (order of dismissal). On July 17, 2008, Mr.

Houston filed a petition for habeas relief under 28 U.S.C. § 2254, challenging the

validity of his resentencing. I R. at 3. However, the district court denied Mr.

Houston’s application for § 2254 relief and dismissed it as time-barred. I R. at

109 (order of dismissal). The district court also denied a COA. I R. at 120. Mr.

Houston now seeks a COA from this court, arguing that he was “illegally and

unconstitutionally” resentenced. He asserts his rights under various statutes, as

well as Articles I and VI of the United States Constitution and the First, Fourth,

Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments to the United States

Constitution.

      In order for this court to grant a COA, Mr. Houston must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Where, as here, the district court’s denial of habeas relief is based on

a procedural ground, he must show that jurists of reason would find it debatable

(1) whether the district court was correct in its procedural ruling, and (2) whether

the petition stated a valid claim of the denial of a constitutional right. Slack v.

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McDaniel, 529 U.S. 473, 484-85 (2000). If he cannot make a threshold showing

on the procedural issue, we need not address the constitutional issues. Id.

       Under 28 U.S.C. § 2244(d)(1), a one-year limitation period applies to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a state court. Pursuant to 28 U.S.C. § 2244(d)(1), this period begins

to run at the latest of

       (A) the date on which the judgment became final by the conclusion of
       direct review or the expiration of the time for seeking such review;

       (B) the date on which the impediment to filing an application created
       by State action in violation of the Constitution or laws of the United
       States is removed, if the applicant was prevented from filing by such
       State action;

       (C) the date on which the constitutional right asserted was initially
       recognized by the Supreme Court, if the right has been newly
       recognized by the Supreme Court and made retroactively applicable to
       cases on collateral review; or

       (D) the date on which the factual predicate of the claim or claims
       presented could have been discovered through the exercise of due
       diligence.

Id. However, the limitation period is tolled during the time when 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).

       Mr. Houston does not allege that there are any constitutional rights newly

recognized by the Supreme Court that apply to his claims, nor does he assert that

he could not have discovered the factual predicate of his claims at the time of his


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state court proceedings. Furthermore, it does not appear that there were any

impediments that prevented his filing a § 2254 application. Accordingly, the one-

year limitation period began to run as of the date on which the judgment became

final and was tolled during his state post-conviction proceedings. The limitation

period began to run again on April 14, 2007, the day after his application for state

post-conviction relief was denied. Given that this habeas petition was not filed

until July 17, 2008, Mr. Houston clearly failed to bring an action within the one-

year limitation period.

      We of course accept that the limitation period may be equitably tolled

under “rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000) (internal quotation marks omitted). Those exceptional

circumstances include instances when, for example, a prisoner is actually

innocent, Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), an adversary’s

conduct—or other uncontrollable circumstances—prevents a prisoner from timely

filing, Gibson, 232 F.3d at 808, or a prisoner actively pursues judicial remedies

but files a defective pleading during the statutory period, Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990). However, “[s]imple excusable neglect

is not sufficient” to bring about equitable tolling. Gibson, 232 F.3d at 808.

Moreover, equitable tolling is appropriate only if the inmate pursues his claim

diligently. Irwin, 489 U.S. at 96. In light of this requirement, we have stated that

a petitioner must “allege with specificity ‘the steps he took to diligently pursue

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his federal claims.’” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008)

(quoting Miller, 141 F.3d at 978).

      In this case, however, Mr. Houston has not alleged with specificity the

steps he took to diligently pursue his federal claims, nor has he alleged any facts

that might justify equitable tolling. Accordingly, no reasonable jurist could

debate the district court’s conclusion that Mr. Houston was not entitled to

equitable tolling. See Yang, 525 F.3d at 930-31; Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000). Mr. Houston’s action was untimely.

      We DENY the application for a COA, DENY IFP, DENY all pending

motions, and DISMISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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