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

                                                                      December 20, 2005
                    UNITED STATES COURT OF APPEALS
                                                                           Clerk of Court
                                TENTH CIRCUIT



 R.L. AUCH,
                                                        No. 05-1292
               Petitioner-Appellant,
          v.                                        District of Colorado
 JOR ORTIZ, Executive Director of                (D.C. No. 05-CV-402 ZLW)
 CDOC; COLORDO ATTORNEY
 GENERAL,

               Respondents-Appellees.


                                       ORDER *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      R.L. Auch, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Auch has failed to make “a




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.
substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      Mr. Auch pleaded guilty to second-degree kidnaping and first-degree sexual

assault in the Denver District Court, and was sentenced to 68 years of

imprisonment. The judgment of conviction was entered on May 1, 1986. Mr.

Auch did not file a direct appeal. On June 25, 2001, Mr. Auch filed a motion for

post-conviction relief under Rules 35(a) and 35(c) of the Colorado Rules of

Criminal Procedure. The Denver District Court denied the motion on June 27,

2001 and the Colorado Court of Appeals affirmed on July 31, 2003. On April 19,

2004, the Colorado Supreme Court denied certiorari.

      Mr. Auch filed a pro se application for a writ of habeas corpus on February

18, 2005. The district court held that his application was time-barred under 28

U.S.C. § 2244(d), and dismissed his application on June 3, 2005. The district

court also denied Mr. Auch’s request for a COA. Mr. Auch now appeals the

denial of his motion for a COA and seeks leave to proceed in forma pauperis.

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists


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could debate whether . . . 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. McDaniel, 529 U.S. 473, 475 (2000) (internal

quotation marks omitted).

      Under 28 U.S.C. § 2244(d), there is a one-year limitation period to a state

prisoner’s right to file an application for a writ of habeas corpus. 1 “The

limitations period generally runs from the date on which the state judgment



      1
        Section 2244(d) provides:
      (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 Section.


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became final after direct appeal, see 28 U.S.C. § 2244(d)(1)(A), but is tolled

during the time the state post-conviction review is pending, see 28 U.S.C. §

2244(d)(2).” Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). Mr.

Auch’s state court judgment became final forty-five days after May 1, 1986, when

his time to file a direct appeal expired. See Colo. App. R. 4(b); 28 U.S.C.

2244(d)(1)(A). Because his conviction became final before April 24, 1996, the

effective date of section 2244, the one-year limitations period started on the

statute’s effective date. Fisher, 262 F.3d at 1142. Mr. Auch filed his application

for federal habeas corpus relief on February 18, 2005, well beyond expiration of

the one-year limitation period. Although any state post-conviction motions filed

by Mr. Auch would toll the running of the limitations period, see 28 U.S.C. §

2244(d)(2), Mr. Auch did not apply for post-conviction relief until June 25, 2001.

Because the one-year limitation period ended in 1997, Mr. Auch’s post-conviction

motions came too late to prevent his right to petition for a writ of habeas corpus

from expiring.

      In his petition for habeas corpus relief, Mr. Auch asserts a claim pursuant

to Apprendi v. New Jersey, 530 U.S. 466 (2000). Liberally construing his pro se

petition, Mr. Auch contends that the limitations period started to run when the

Supreme Court issued its opinion in Apprendi establishing a new rule of

constitutional law. However, section 2244 delays the start of the limitations


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period only for newly recognized constitutional rights that are retroactively

applicable. See 28 U.S.C. § 2244(d)(1)(C). Neither Apprendi nor its progeny

apply retroactively to cases on collateral review. See United States v. Bellamy,

411 F.3d 1182, 1186 (10th Cir. 2005) (“Booker does not apply retroactively to

initial habeas petitions . . . .”); United States v. Price, 400 F.3d 844, 849 (10th

Cir. 2005) (“Blakely does not apply retroactively to convictions that were already

final at the time the Court decided Blakely.”); United States v. Mora, 293 F.3d

1213, 1219 (10th Cir. 2002) (finding that Apprendi is not retroactively applicable

to habeas petitions). Consequently, Apprendi did not delay the running of Mr.

Auch’s one-year limitations period for filing a habeas corpus petition.

      Aside from the decision in Apprendi, Mr. Auch has provided no explanation

for his delay in filing this habeas corpus petition. Although the one-year

limitation period set forth in § 2244 is subject to equitable tolling, “this equitable

remedy 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.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). Mr. Auch has not identified, nor can we find in the record, any

extraordinary circumstances that would justify an equitable tolling of the one-year

limitations period. Therefore, we see no reason to excuse Mr. Auch from the




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statutory limitations period, and Mr. Auch’s petition is time barred under 28

U.S.C. § 2244(d).




      Accordingly, we DENY R.L. Auch’s request for a COA and DISMISS this

appeal. Petitioner’s motion to proceed in forma pauperis is DENIED.

                                              Entered for the Court,

                                              Michael W. McConnell
                                              Circuit Judge




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