                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 1, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    AARON COLEMAN,

                Petitioner-Appellant,

    v.                                                   No. 10-1014
                                               (D.C. No. 1:09-CV-01192-ZLW)
    BRIGHAM SLOAN; JOHN                                   (D. Colo.)
    SUTHERS, Attorney General of the
    State of Colorado,

                Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.



         Aaron Coleman seeks a certificate of appealability (COA) to appeal the

district court’s dismissal of his pro se petition for a writ of habeas corpus. We

deny his request for a COA, and dismiss the appeal.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Mr. Coleman initially brought his petition pursuant to 28 U.S.C. § 2241.

The district court, noting that the petition appeared to challenge the validity of his

convictions and sentences rather than the execution of his sentences, ordered him

to file an amended application under 28 U.S.C. § 2254. He did.

      In his § 2254 petition, Mr. Coleman attacked convictions he received in two

Colorado state court cases, Case No. 92-CR-1745 and Case No. 93-CR-1468. The

district court dismissed the attack on Case No. 92-CR-1745 as second or

successive. See 28 U.S.C. § 2244(b)(3)(A). It then ordered the state to file a

pre-answer response to Mr. Coleman’s claims related to Case No. 93-CR-1468,

pertaining to his convictions for burglary and sexual assault.

      In its response, the state argued that his claims were untimely under the

one-year limitations period provided in 28 U.S.C. § 2244(d)(1). It also argued

that some of the claims had not been exhausted in state court. The district court

concluded that Mr. Coleman’s claims were barred by the one-year limitations

period. It therefore dismissed his remaining claims and the action.

      In order to appeal the district court’s decision, Mr. Coleman must obtain a

COA. 28 U.S.C. § 2253(c)(1)(A). This is a jurisdictional prerequisite to appeal.

See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Since the district court

denied his claims on procedural grounds, he must show both “that jurists of

reason would find it debatable whether [his] petition states a valid claim of the




                                          -2-
denial of a constitutional right and ... whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      We agree with the district court’s procedural resolution of this case, and

must therefore deny COA. But we reach that result through a slightly different

analysis than that of the district court, as follows.

                                   BACKGROUND

      On May 19, 1994, a Colorado jury convicted Mr. Coleman of first degree

sexual assault and second degree burglary. On September 30, 1994, he was

sentenced to 25 years in the Colorado Department of Corrections. On direct

appeal, he raised a single issue, challenging the sufficiency of the evidence to

support his conviction. On March 21, 1996, the Colorado Court of Appeals

rejected this challenge and affirmed his conviction.

      Mr. Coleman subsequently filed a motion for post-conviction relief in state

district court on June 7, 1996 (supplemented on June 18, 1996), arguing

ineffective assistance of trial counsel. The district court rejected his claims and

denied the motion. On July 22, 1999, the Colorado Court of Appeals affirmed the

denial.

      On August 30, 1999, Mr. Coleman wrote a state district court judge a letter,

apparently containing additional claims. On October 6, 1999, a different state

court judge, construing the letter as an application for post-conviction relief,

denied it as legally insufficient on its face.

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      On November 20, 2002, Mr. Coleman filed a pro se motion to vacate illegal

sentence in state court. He later withdrew this motion on April 30, 2003.

      On November 9, 2004, Mr. Coleman filed another pro se motion in state

court seeking to vacate his allegedly illegal sentence. He raised a number of

claims, including incompetency at trial due to forced medication; insufficiency of

the evidence; faulty jury instructions; compelled testimony; prosecutorial

misconduct in closing argument at his trial; a claim under Blakely v. Washington,

542 U.S. 296 (2004); and denial of equal protection. The district court denied

this motion on November 24, 2004. On March 22, 2007, the Colorado Court of

Appeals affirmed the denial. Mr. Coleman filed his federal habeas petition on

June 25, 2009.

                                   ANALYSIS

      1. One-Year Limitation Period

      Under 28 U.S.C. § 2244(d)(1), a one-year limitation period applies to

habeas petitions brought by prisoners in custody pursuant to state court

judgments. Generally, this limitation period runs from the latest of the date on

which the state court judgment “became final by the conclusion of direct review

or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). In

Mr. Coleman’s case, the district court reasoned that the limitations period began

to run on May 6, 1996, the end of the forty-six day period during which he could

have sought, but did not seek, certiorari review in the Colorado Supreme Court

                                        -4-
after the Colorado Court of Appeals affirmed his conviction. 1 See

C.A.R. 52(b)(3) (2009). Thus, the district court reasoned, absent tolling or other

extension of the deadline, his § 2254 petition was due on or before May 6, 1997.

      But this calculation rests on an error. Although the Colorado Appellate

Rules currently provide for a forty-six day period for seeking state certiorari, this

was not the case when the Colorado Court of Appeals denied Mr. Coleman’s

appeal in 1996. At that time, the Colorado Appellate Rules required the petitioner

to first seek rehearing in the Court of Appeals before filing a petition for a writ of

certiorari. C.A.R. 52(b) (1996). The petitioner had thirty days from the denial of

rehearing to seek certiorari. Id.

      There is no evidence that Mr. Coleman filed such a rehearing petition with

the Court of Appeals. He had fourteen days to do so from the entry of the Court

of Appeals’ judgment. C.A.R. 40 (1995). Regardless of whether Mr. Coleman’s

conviction became “final” for § 2244(d) purposes fourteen days after the Court of

Appeals issued its opinion (April 4, 1996; the date on which the time for “seeking

further review” expired) or on the date that the Court of Appeals issued its


1
       Normally, direct review of a criminal conviction includes the time
necessary to file a United States Supreme Court petition for certiorari. See Locke
v. Saffle, 237 F.3d 1269, 1271-73 (10th Cir. 2001). Mr. Coleman, however, could
not have sought United States Supreme Court review because he failed to file for
certiorari before the Colorado Supreme Court. See 28 U.S.C. § 1257(a) (limiting
United States Supreme Court certiorari jurisdiction to “[f]inal judgments or
decrees rendered by the highest court of a State in which a decision could be
had”).

                                         -5-
mandate (April 8 or 9, 1996, the day direct review was “concluded”), his federal

habeas petition is still untimely.

        In either case, Mr. Coleman’s conviction became final before April 24,

1996, the effective date of AEDPA. When a petitioner’s conviction became final

before AEDPA was effective, a special rule applies. “[T]he one-year statute of

limitation does not begin to run until April 24, 1996,” Hoggro v. Boone, 150 F.3d

1223, 1225 (10th Cir. 1998), requiring that the petition be filed before April 24,

1997, unless tolling is applicable, Fisher v. Gibson, 262 F.3d 1135, 1142

(10th Cir. 2001). Mr. Coleman’s petition was therefore due on or before April 24,

1997.

        2. Statutory Tolling

        The one-year limitations period is tolled, however, whenever a

properly-filed state post-conviction motion is pending. See 28 U.S.C.

§ 2244(d)(2). Accordingly, the one-year clock was suspended beginning on

June 7, 1996, when Mr. Coleman filed his first post-conviction motion for

sentence reconsideration. It remained suspended until September 30, 1999, when

the Colorado Court of Appeals issued its mandate affirming the denial of his

motion. As of that date, the clock had run for forty-three days between April 24,




                                         -6-
1996 and June 7, 1996, leaving Mr. Coleman 322 days in which to file his § 2254

petition. 2

       Mr. Coleman’s limitations period began running again on October 1, 1999.

It expired 322 days later, on August 17, 2000. His post-conviction motions

subsequent to that date did not toll the time for filing his § 2254 petition, because

the statutory period had already lapsed. Thus, Mr. Coleman’s petition was due on

or before August 17, 2000. But he did not file this petition until June 25, 2009,

nearly nine years too late.

       In his brief and application for COA, Mr. Coleman makes a number of

arguments against the application of the time bar. He argues that since his claims

are constitutional, no time bar can apply to them; that the one-year limitations

statute constitutes an unconstitutional “suspension” of the writ of habeas corpus;

that application of the one-year limitations period offends traditional notions of

comity; that application of an invalid law creates an unending violation that

cannot be subject to a one-year limitations period; that the one-year period began

2
       Mr. Coleman subsequently filed several other post-conviction motions.
Only one of these, however, was arguably filed during the statutory tolling
period: his letter to a district court judge on August 30, 1999. The letter is not in
the record; it is only referenced on a state court docket sheet. But to the extent it
could even be considered a request for post-conviction relief, the state district
court denied it as insufficient on its face on October 6, 1999. In view of this
judicial determination of insufficiency, the letter was likely not a “properly filed
application for state post-conviction relief” that would further extend the time for
filing Mr. Coleman’s § 2254 petition. See § 2244(d)(2). Even if the letter served
as a tolling motion, however, the extension of approximately five weeks of
disposition time would not help him.

                                         -7-
at a later date than we have specified because he could not discover some of his

claims until after the deadline had passed; and that he was hindered by various

prison conditions and injuries from filing his petition sooner. Having carefully

examined these arguments in light of the applicable law, we find none of them

warrants issuance of a COA under the standards we have outlined above.

                                 CONCLUSION

      Mr. Coleman has not met the requirements for a COA. We therefore

DENY his application for a COA and DISMISS this appeal. His motion to

proceed in forma pauperis is GRANTED.


                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




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