                                                                          F I L E D
                                                             United States Court of Appeals
              UNITED STATES COURT OF                    APPEALS      Tenth Circuit

                                                                        January 10, 2006
                               TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                          Clerk of Court


 DENNIS MICHAEL BLAY,

       Petitioner-Appellant,

 v.
                                                        No. 05-1280
                                                     (D.C. No. 05-Z-168)
 AL ESTEP, Superintendent Limon
                                                         (Colorado)
 Correctional Facility; ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents-Appellees..




                                     ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Dennis Michael Blay, a state prisoner proceeding pro se, applies for a

certificate of appealability (COA) to challenge the district court’s denial of his 28

U.S.C. § 2254 habeas petition for untimeliness. We exercise jurisdiction under 28

U.S.C. § 2253(c)(1) and liberally construe Mr. Blay’s pleadings and submissions

to this court. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Cummings v.

Evans, 161 F.3d 610, 613 (10th Cir. 1998). So doing, we do not believe jurists of

reason would find debatable the district court’s dismissal of Mr. Blay’s petition,
Slack v. McDaniel, 529 U.S. 473, 478 (2000), and we therefore deny his

application for a COA.

      Mr. Blay filed a § 2254 petition to challenge his Colorado state convictions

for sexual assault on a child, aggravated incest, and contributing to the

delinquency of a minor. After his conviction became final, Mr. Blay filed a series

of post conviction actions in state court. His first post conviction motion was

filed on September 6, 1996, four months after 28 U.S.C. § 2244(d), the one-year

statute of limitations provision for federal habeas actions, was enacted. On

February 16, 1999, the Colorado Supreme Court denied his motion for certiorari

in that action. Prior to exhaustion of his first motion, Mr. Blay filed a second

post conviction motion on July 20, 1998, for which certiorari was also denied by

the Colorado Supreme Court on August 22, 2002. The United States Supreme

Court subsequently denied certiorari on November 4, 2002. Finally, Mr. Blay

filed a third post conviction motion in state court on June 22, 2002, for which the

Colorado Supreme Court denied certiorari on November 10, 2003. On February

10, 2004, the United States Supreme Court denied Mr. Blay’s motion for

extension of time to file a petition for a writ of certiorari in connection with his

last post conviction proceeding.

      In examining the timing of the various state post conviction actions, a

magistrate judge determined that Mr. Blay’s § 2254 motion did not appear to


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comply with the one-year limitations period outlined in § 2244(d), and ordered

him to show cause why his action should not be dismissed as time barred. In

response, Mr. Blay contended he was entitled to tolling of ninety days after his

last post conviction motion was denied by the Colorado Supreme Court, and that

he should also be granted equitable tolling because he was vigilant in pursuing his

claims but was hindered by limited access to the prison library. He also argued

his current § 2254 motion actually represented an amended motion to a habeas

petition he filed in 2001, which was dismissed for failure to exhaust state

remedies, and hence should relate back to the previously filed petition.

      The district court rejected Mr. Blay’s arguments. Although § 2244(d)’s one

year limitations period was properly tolled while Mr. Blay’s post conviction

actions were pending in state court, see 28 U.S.C. § 2244(d)(2), there nonetheless

existed a four month period between April 24, 1996 and September 5, 1996, and a

fourteen month period between October 11, 2003 and January 18, 2005, when Mr.

Blay did not have any state post conviction proceedings pending. These two gaps

in time equal more than a year and place Mr. Blay outside of the one year

limitations period of § 2244(d).

      The district court similarly rejected Mr. Blay’s argument that he was

entitled to an additional ninety days of tolling to enable him to petition the United

States Supreme Court for certiorari after the Colorado Supreme Court denied his


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third post conviction action. The district court noted that the additional ninety

day period was applicable in the state direct appeal process, but not in state

collateral proceedings. See York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003).

The district court also dismissed out of hand Mr. Blay’s claim that his habeas

petition was timely because it really was an amended application that related back

to a petition he filed in 2001. The court stated that to give credence to Mr. Blay’s

argument would undermine § 2244(d) and defeat the purpose of finality in habeas

actions.

      Finally, the court rejected Mr. Blay’s argument that he should be subject to

equitable tolling. The court recognized that where a petitioner has diligently

pursued his claims and demonstrated that his failure to timely file his habeas

action was caused by extraordinary circumstances beyond his control, § 2244(d)

may be tolled. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

However, the court determined Mr. Blay failed to provide factual details to

support his claims of diligence, or to show why his allegedly sporadic access to

the prison library undermined his ability to file his habeas petition in a timely

manner. The court dismissed Mr. Blay’s petition as time barred. It subsequently

denied Mr. Blay’s motion to proceed in forma pauperis (ifp) on appeal, and his

application for a COA.

      The issuance of a COA is jurisdictional, Miller-El v. Cockrell, 537 U.S.


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322, 336 (2003), and will only issue “if the applicant has made a substantial

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

district court dismisses a habeas petition on procedural grounds, a COA will issue

when “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484. In determining whether

a COA should issue, we must review the claims in Mr. Blay’s habeas petition and

generally assess their merits. Miller-El, 537 U.S. at 336. However, we are not

required to engage in a “full consideration of the factual or legal bases adduced in

support of the claims. In fact, the statute forbids it.” Id. While Mr. Blay is not

required to prove the merits of his case to obtain a COA, he must demonstrate

“something more than the absence of frivolity or the existence of mere good faith

on his . . . part.” Id. at 338 (internal quotation and citation omitted).

      With these principles in mind, we have carefully reviewed the district

court’s order, the record on appeal, and Mr. Blay’s submissions to this court.

Having done so, we are not persuaded jurists of reason would find debatable the

district court’s ruling that Mr. Blay’s claims were time barred. See Slack, 529

U.S. at 484. Likewise, we do not find debatable the court’s conclusion that Mr.

Blay’s claimed diligence and limited access to the prison library were insufficient

to establish the extraordinary circumstances warranting equitable tolling. See

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).


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      Mr. Blay has also filed a motion for leave to proceed before this court

informa pauperis. Because Mr. Blay has not raised a reasoned, nonfrivolous

argument on appeal, see McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812

(10th Cir.1997), we deny his request.

      In sum, we DENY Mr. Blay’s application for a COA and his request to

proceed ifp, and DISMISS the appeal.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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