                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                      FEB 9 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                        Clerk

 BRIAN P. CALCARI,

           Petitioner-Appellant,

 v.                                                           No. 04-1422
                                                           (D.C. No. 04-Z-1298)
 EXECUTIVE DIRECTOR JOE ORTIZ                                    (D. Colo.)
 and THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

           Respondents-Appellees.



                         ORDER DENYING A CERTIFICATE OF
                                 APPEALABILITY



Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


       Brian Calcari, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) in order to appeal the district court’s dismissal of his 28 U.S.C.

§ 2254 petition. Because we agree with the district court that Calcari’s petition is time-

barred by the one-year limitation period set forth in 28 U.S.C. § 2244(d), we DENY a

COA and DISMISS.1

       1
          A COA may issue only upon “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires a petitioner to
establish “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
       Taking the facts from the district court’s Order and Judgment of Dismissal, we

note that Calcari is a prisoner in custody of the Colorado Department of Corrections

whose conviction became final pursuant to a state court judgment on April 19, 1999,

when the Colorado Supreme Court denied his petition for certiorari on direct review. For

purposes of § 2244(d)’s one-year limitation period, that judgment became final on July

18, 1999, after the ninety days for filing for review in the United States Supreme Court

expired. Calcari did not file for state post-conviction relief pursuant to Colo. R. Crim. P.

35(c) until November 23, 2001, well after the one-year limitation under § 2244(d) had

already passed on July 18, 2000. Rather than initially pursue state post-conviction review

of his claims, Calcari first sought relief in federal district court and then on appeal to the

Tenth Circuit. We dismissed his petition and denied his request for a COA because it

contained both exhausted and unexhausted claims. Calcari v. Suthers, No. 00-1304, 2000

WL 1853952 (10th Cir. Dec. 19, 2000). He subsequently filed a petition for certiorari

before the United States Supreme Court, which was denied on June 8, 2001.

       Construing his complaint as presented by the district court and his brief on appeal

liberally, as we must, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), he argues that he is

entitled to equitable tolling for the period in which he diligently, although misguidedly,

pursued his claims in federal court before filing for post-conviction relief in Colorado




adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quotation omitted).

                                               2
state court. Under § 2244(d)(2), “[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 shall not be counted toward any period of limitation under this

subsection.” Because the statute does not provide for tolling while a petitioner seeks

review in federal court prior to filing for state court relief, the district court found that the

one-year period for filing his § 2254 petition had run. See Duncan v. Walker, 533 U.S.

167, 172 (2001) (holding that a federal habeas petition does not toll the one-year

limitation period under § 2244(d)(2)). We agree.

       We note, however, that the district court also considered whether the one-year

limitation ran even if equitable tolling were to apply to the time during which Calcari

pursued his first § 2254 petition.2 The district court found that almost seven months

transpired between July 18, 1999, when his sentence became final, and February 10,

2000, when he filed his first habeas petition. Additionally, over five months lapsed

between the time the United States Supreme Court denied certiorari for his first habeas

petition on June 18, 2001 and November 23, 2001, the date he filed for state post-

conviction relief. The district court concluded that even if the time during which he

sought his first habeas petition tolled the one-year limitation, that period “expired during

the almost twelve months” before the first habeas petition was filed, and after the


       2
        Because his first § 2254 petition was dismissed for failure to exhaust state
remedies, he does not have to obtain authorization from this court in order to file the
present petition. See Slack, 529 U.S. at 487.

                                                3
dismissal of his federal petition was affirmed on appeal. Because “almost twelve”

months would not exhaust a one-year limitation period, if equitable tolling were

appropriate, his present petition would not be time-barred. However, because Calcari’s

petition presents no “rare and exceptional circumstances,” Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000), equitable tolling is not appropriate. Miller v. Marr, 141 F.3d

976, 978 (10th Cir. 1998) (noting, for example, that equitable tolling would be

appropriate in cases of actual innocence).

       Accordingly, we DENY petitioner’s request for a COA and DISMISS. We also

DENY Calcari’s motion to proceed in forma pauperis pursuant to 29 U.S.C. § 1915(a)(3)

on appeal for substantially the same reasons as the district court.



                                                  ENTERED FOR THE COURT



                                                  Carlos F. Lucero
                                                  Circuit Judge




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