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

                                                                        May 17, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



 GREGGORY W ADE OLIVER,

       Petitioner-A ppellant,
 v.
                                                        No. 05-1286
 CARL ZENON, W arden, Arkansas                   (D.C. No. 05-CV-648-ZLW )
 V alley C orrectional Facility; THE                     (D . Colo.)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

       Respondent-Appellee.



                       OR DER DENYING CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M C KA Y, and LUCERO, Circuit Judges.


      Gregory W ade O liver, 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.

      Oliver was convicted in 1995 of first degree assault and two counts of

com mitting crimes of violence and was sentenced to twenty years in prison. He

appealed his conviction, but his appeal was denied and, on September 28, 1998,
the Colorado Supreme Court denied his petition for a writ of certiorari. Oliver

did not seek a writ of certiorari from the United States Supreme Court.

      Before his conviction became final, Oliver filed a post-conviction petition

pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure, but this

petition was dismissed. On August 9, 1999, he filed another petition for post-

conviction relief, this one pursuant to Rule 35(c). This w as dismissed as w ell,

with the Colorado Supreme Court finally denying his petition for a writ of

certiorari on August 30, 2004.

      On April 1, 2005, Oliver filed this § 2254 habeas petition. The district

court concluded that Oliver’s habeas petition was time-barred and denied his

application for a COA. Oliver now seeks a COA from this court. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U .S.C. § 2244(d). It states:



      1
         Oliver’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 COA. 28 U.S.C. § 2253(c)(1)(A ). 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 O liver 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 Oliver a COA ,
he may not appeal the district court’s decision absent a grant of a COA by this
court.

                                            -2-
      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from 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.
       (2) The 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 his petition for a writ of certiorari on direct appeal was denied by the

Colorado Supreme Court on September 28, 1998, Oliver had until December 28,

1998, to file a petition for a writ of certiorari in the United States Supreme Court.

See Sup. Ct. R. 13. At that point, his conviction became final and the limitations

period for his habeas petition began to run. See Locke v. Saffle, 237 F.3d 1269,

1273 (10th Cir. 2001); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999).

      Oliver’s first post-conviction motion was filed before his conviction was

final and hence did not toll the statute of limitations. He filed his second motion



                                         -3-
for post-conviction relief on August 9, 1999, 223 days after his conviction

became final. Dismissal became final on August 30, 2004, and Oliver did not file

his federal habeas petition until 213 days later. The statute of limitations was

running for both of these two periods of time; together, they amount to well over

the one-year period during which a habeas petition can be filed. As such,

Oliver’s § 2254 petition was filed after the end of the statute of limitations.

      Failure to file in an a timely manner can be excused if there is reason to

equitably toll the statue of limitations. Equitable tolling “is only 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). Oliver has not shown any

extraordinary circumstances beyond his control that prevented him from filing in

a timely manner. His petition is therefore time-barred.

      For the reasons set forth above, Oliver’s request for a COA is DENIED and

the appeal is DISM ISSED. His motion to proceed in forma pauperis is granted.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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