                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        February 22, 2013
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT


 ARLUS DANIEL, JR.,
                 Petitioner–Appellant,                          No. 12-1291
           v.                                        (D.C. No. 1:11-CV-03093-LTB)
 TRAVIS TRANI, Warden; JOHN                                      (D. Colo.)
 WILLIAM SUTHERS, The Attorney
 General of the State of Colorado,
                 Respondents–Appellees.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition as time-barred. In 2007,

Petitioner was convicted of theft and securities fraud and sentenced to eighteen years’

imprisonment. His conviction and sentence were affirmed on direct appeal in December

2009. After unsuccessfully filing various pro se motions in the state court, Petitioner filed

this federal habeas petition in November 2011.

       The district court concluded that Petitioner’s federal petition was filed outside the



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
one-year statute of limitations even if the court tolled the times in which Petitioner’s state

post-conviction motions were pending. The court also concluded that Petitioner was not

entitled to equitable tolling of the statute of limitations. The court therefore dismissed the

petition as untimely.

       In his request for a certificate of appealability, Petitioner argues his petition should

be considered timely because (1) his appellate attorney was ineffective and (2) the

conviction could not be considered final under 28 U.S.C. § 2244(d)(1)(a) until after the

conclusion of the state post-conviction proceedings, since ineffective assistance claims

can only be brought in collateral proceedings. Neither argument is persuasive. The

district court carefully explained why appellate counsel’s alleged ineffectiveness did not

entitle Petitioner to statutory or equitable tolling of the statute of limitations, and we see

no error in its analysis. As for Petitioner’s second argument, a judgment becomes final

for limitations purposes “by the conclusion of direct review or the expiration of the time

for seeking such review,” 28 U.S.C. § 2244(d)(1)(A), not after all possible claims can be

brought and considered in state court proceedings. Contrary to Petitioner’s contentions,

“direct review” refers only to the direct criminal appeal and Supreme Court review

thereof, not to post-conviction and other collateral proceedings. See Redd v. McGrath,

343 F.3d 1077, 1081 (9th Cir. 2003).

       After carefully reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of the

habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Therefore, for substantially the same reasons given by the district court, we DENY

Petitioner’s request for a certificate of appealability and DISMISS the appeal.

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


                                                  ENTERED FOR THE COURT



                                                  Monroe G. McKay
                                                  Circuit Judge




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