                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           FEB 15 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 MARK L. LUTHER,

       Petitioner-Appellant,

 v.                                                    No. 04-1151
                                                     D.C. No. 03-Z-2471
 GARY GOLDER, Warden, Sterling                            (D. Colo.)
 Correctional Facility; ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents-Appellees.


                     ORDER DENYING A CERTIFICATE
                          OF APPEALABILITY



Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Mark Luther, a Colorado 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. We DENY a COA and DISMISS.

      After Luther violated the conditions of his parole on a state manslaughter

conviction by fleeing to Texas, the parole board revoked Luther’s parole. Luther

pled guilty to attempted escape and the trial court sentenced him to three years of

incarceration plus a three-year period of mandatory parole. The trial court
ordered that Luther was to serve this sentence consecutively to the underlying

manslaughter sentence. Judgment was entered on July 3, 1997.

      Although he did not directly appeal his conviction or sentence, Luther did

seek collateral review in state court arguing that his combined period of parole for

the manslaughter and escape charges could not exceed three years under an

applicable Colorado statute. The Colorado Court of Appeals agreed with Luther’s

statutory interpretation, but the Colorado Supreme Court reversed.

      On November 21, 2003, the district court received Luther’s § 2254 petition,

wherein he restated his Colorado statutory law argument and asserted, without

arguing, that his sentence of consecutive periods of parole violates his due

process and equal protection rights. Concluding that Luther failed to file his

petition within the applicable one-year limitation period, and declining to

equitably toll the statute, the district court denied his petition and dismissed the

habeas action. His application for COA having been denied below, Luther now

seeks a COA from this court. 1


      1
        Luther’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death 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). AEDPA 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 Luther to
demonstrate “that reasonable jurists could debate whether (or, for that matter,
                                                                       (continued...)

                                          2
         Pursuant to 28 U.S.C. § 2244(d), a state prisoner must file an application

for a writ of habeas corpus within one year of the date on which “judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such a review.” Under Colorado rules, Luther had forty-five days after

entry of judgment on July 3, 1997 to seek direct review of his conviction and

sentence. Luther conceded below, through counsel, that his “conviction and

sentence became final on August 17, 1997 and the one-year limitation period

commenced on that date.” Furthermore, he conceded that even when tolling the

statute of limitations for the period during which his state post-conviction

petitions were pending, “the application was not filed within the period of one

year.”

         In his present application, Luther argues that by granting him post-

conviction relief and remanding to the trial court for correction of the mittimus,

the Colorado Court of Appeals ordered Luther’s “resentencing,” and therefore

“the issuance of this new sentence would be the triggering date.” Luther also

argues that his re-incarceration following the Colorado Supreme Court’s reversal




        (...continued)
         1

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. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the
district court denied Luther a COA, he may not appeal the district court’s decision
absent a grant of a COA by this court.

                                            3
of the court of appeals’ decision constitutes a “new fact” in support of his habeas

petition that merits equitable tolling. Luther did not raise these issues below. To

the contrary, he conceded before the district court that August 17, 1997 serves as

the appropriate triggering date for the one-year limitations period, and never

argued that the Colorado Supreme Court’s decision constitutes a “new fact”

justifying equitable tolling. Accordingly, Luther has waived these arguments.

See In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (except in extraordinary

circumstances, this court will not consider an issue that was not before the trial

court). 2

       We GRANT Luther’s motion to proceed in forma pauperis. We DENY a

COA and DISMISS.

                                       ENTERED FOR THE COURT


                                       Carlos F. Lucero
                                       Circuit Judge




       2
         We note that this is not a case where a trial court re-sentences an
individual and the prisoner claims that the newly-imposed sentence suffers from
constitutional infirmaties. Rather, the Colorado Supreme Court, on collateral
review, reversed the judgment of the court of appeals and remanded to the trial
court for reinstatement of the original sentence. Luther argues in his § 2254
petition that the trial court committed constitutional error in 1997 by imposing
this original sentence and does not argue that by reinstating the original sentence
the trial court violated his constitutional rights.

                                          4
