                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS June 11, 2013
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 DAVID K. JENNER,

          Petitioner-Appellant,

 v.
                                                         No. 13-1134
                                                (D.C. No. 1:12-CV-03278-LTB)
 FRANCIS FAULK, Warden; THE
                                                           (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      After more than a decade spent unsuccessfully challenging his conviction

for sexual assault in state court, David Jenner filed a petition for a writ of habeas

corpus in federal district court. For its part, though, the district court dismissed

the petition as untimely and denied Mr. Jenner’s request for a certificate of

appealability (“COA”). Mr. Jenner now asks that we undo the district court’s

COA denial and allow him to proceed with an appeal.



      *
         This order is not binding precedent except under the doctrines of law of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.
      We find no fault, however, in either the district court’s reasoning or result,

much less grounds on which to grant a COA. The district court found Mr.

Jenner’s federal petition was filed well outside the one year statute of limitations

prescribed by 28 U.S.C. § 2244(d)(1), and about this much there seems to be no

real disagreement. Controversy arises only about the question of tolling. The

district court acknowledged that the statute of limitations may be tolled under

various circumstances, including during the pendency of “a properly filed

application for State post-conviction . . . collateral review.” See 28 U.S.C.

§ 2244(d)(2). The district court observed, too, that Mr. Jenner purported to have

filed such an application in June 2010. But the district court held that the

limitations period wasn’t tolled by that particular filing because both a Colorado

trial court and the Colorado Court of Appeals rejected it as out of time. And it is

long settled that an untimely state post-conviction petition generally is not

considered “properly filed” within the meaning of § 2244(d)(2) and thus does not

toll the one-year federal limitations period. Pace v. DiGuglielmo, 544 U.S. 408,

417 (2005); see also Proffit v. Wyoming, 446 F. App’x 83, 85 (10th Cir. 2011);

Kerchee v. Jones, 428 F. App’x 851, 857 (10th Cir. 2011); Reed v. Timme, 389 F.

App’x 850, 852 n.4 (10th Cir. 2010).

      Mr. Jenner challenges this last step of the district court’s analysis. He says

that the state courts got state law wrong, that his June 2010 motion was actually

timely under Colorado law. The difficulty with this line of argument is that it

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isn’t generally the province of federal courts to question the interpretation of state

law offered by state courts: when a state court has determined that an application

for state post-conviction collateral review is untimely under state law, that is

usually “the end of the matter for purposes of § 2244(d)(2).” Pace, 544 U.S. at

414 (internal quotation mark omitted); see also Zepeda v. Walker, 581 F.3d 1013,

1018 (9th Cir. 2009).

      Separately, Mr. Jenner contends his June 2010 state post-conviction

petition should be treated as “properly filed” for another reason: the Colorado

Court of Appeals proceeded to address (and reject) the petition on the merits after

ruling it untimely. But as the United States Supreme Court has explained, “[a]

court will sometimes address the merits of a claim that it believes was presented

in an untimely way,” and a ruling on the merits of an out-of-time application in

no way undermines the force of an alternative holding that the application is

indeed untimely. Carey v. Saffold, 536 U.S. 214, 225 (2002).

      Given these intractable obstacles he faces to relief, Mr. Jenner’s request for

a COA is denied and the appeal dismissed. Mr. Jenner’s motion to proceed in

forma pauperis is granted.

                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge




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