                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                           February 3, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
KERRY MINOR,

      Petitioner - Appellant,

v.                                                          No. 16-1376
                                                   (D.C. No. 1:16-CV-01827-LTB)
CHAPDELAINE, Warden; CYNTHIA                                  (D. Colo.)
COFFMAN, the Attorney General of the
State of Colorado,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before McHUGH and BALDOCK, Circuit Judges.**
                   _________________________________

      Appellant Kerry Minor, a Colorado state prisoner, seeks a certificate of

appealability (COA) allowing him to appeal the district court’s dismissal of his




      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
          The Honorable Neil Gorsuch considered this matter originally but did not
participate in its final resolution. The practice of this Court permits the remaining two
panel judges, if in agreement, to act as a quorum in resolving this matter. See 28 U.S.C.
§ 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting
that this Court allows the remaining panel judges to act as a quorum in resolving an
appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2nd Cir. 1994), cert. denied, 513
U.S. 1082 (1995) (holding that the remaining two judges of the original three judge panel
could decide a petition for rehearing without the third judge).
application for a writ of habeas corpus under 28 U.S.C. § 2254. But we just do not

see how we may grant him one.

         Specifically, we agree with the district court that Appellant’s application is

untimely under 28 U.S.C. § 2244(d), and we do not believe this conclusion is

debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that courts of

appeals should grant COAs for habeas applications the district court dismissed on

procedural grounds when, among other requirements, “the prisoner shows . . . that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling”). Section 2244(d)(1) teaches that “[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.” This period began to run on the date

Appellant’s state-court judgment became final for the purposes of § 2244(d), which,

in his case, was February 12, 2007. See id. § 2244(d)(1)(A). Obviously enough,

Appellant thus had until February 12, 2008, to file his application in the district

court.

         But Appellant did not file his application until July 14, 2016—over eight years

from the day the one-year limitation period ran in full. Appellant’s application is

therefore untimely under § 2244(d) unless some other statute or legal principle tolled

the one-year limitation period. One potential avenue is § 2244(d)(2), which requires

tolling the limitation period for “[t]he time during which a properly filed application

for State post-conviction or other collateral review with respect to the pertinent



                                            2
judgment or claim is pending.”         And to be sure, Appellant filed post-conviction

motions for relief in Colorado state court that concluded just recently.

       Even so, the timing when Appellant filed his motions for post-conviction relief

in Colorado state court matters greatly, for “[o]nly state petitions for post-conviction

relief filed within the one year allowed by [§ 2244(d)(1)] will toll the statute of

limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (emphasis

added). Appellant, however, filed his very first motion for post-conviction relief in

Colorado state court on November 13, 2009, which was nearly two years after

February 12, 2008. Appellant thus cannot rely on § 2244(d)(2) to toll the one-year

limitation period.

       Alternatively, since the one-year limitation period is not jurisdictional in

nature, the doctrine of equitable tolling could possibly salvage Appellant from

§ 2244(d)’s time requirement. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010)

(holding that § 2244(d) “is subject to equitable tolling”). Equitable tolling requires

that Appellant show “‘(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way’ and prevented timely filing.” Id.

at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As far as we can

tell, the only potential argument Appellant makes in support of this doctrine is that he

filed his November 13, 2009 state motion for post-conviction relief within the time

limitation set by Colorado law—i.e., a limitation that is not constrained to one year—

and he therefore should be excused from filing an untimely application for federal

habeas relief in the district court.

                                             3
      But in light of our precedent that state post-conviction motions filed after

§ 2244(d)’s one-year limitation period has expired have no bearing on the timeliness

of a petitioner’s federal habeas application, see, e.g., Clark, 468 F.3d at 714, we do

not believe Appellant’s alleged diligence in state court could or should cure his lack

of diligence in federal court even for the purposes of equitable tolling. And in any

event, even if we were to generously assume Appellant was diligent, we are at a loss

in identifying what extraordinary circumstance may have stood in his way to prevent

timely filing of his federal application. We thus see no reason to equitably toll the

one-year limitation period.

      Because we cannot decipher any reason to toll § 2244(d)’s one-year limitation

period, we agree with the district court that Appellant’s § 2254 application for a writ

of habeas corpus is untimely for substantially the same reasons outlined in its August

29, 2016 order. We also believe it is overwhelmingly clear that no reasonable jurist

could find the timeliness of Appellant’s application to be debatable. We therefore

deny his request for a COA and dismiss this matter. Appellant’s motion for leave to

proceed in forma pauperis is likewise denied.




                                           Entered for the Court


                                           Bobby R. Baldock
                                           Circuit Judge




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