                                                                                         FILED
                                                                             United States Court of Appeals
                                                                                     Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  October 5, 2009
                                     TENTH CIRCUIT
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court



KYLE KEITH KILGORE,

              Petitioner - Appellant,                            No. 08-1417
                                                                (D. Ct. Colo.)
v.                                                    (D. Ct. No. 1:06-CV-00333-ZLW)

ATTORNEY GENERAL OF THE STATE
OF COLORADO; AL ESTEP, Warden,

              Respondents - Appellees,




       ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS,
          APPLICATION FOR CERTIFICATE OF APPEALABILITY
                     AND DISMISSING APPEAL


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


       Kyle Kilgore, a Colorado state prisoner appearing pro se,1 seeks a certificate of

appealability (COA). He wants to appeal from the denial of his petition for writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254 and moves to proceed in forma

pauperis (ifp) on appeal. Because Kilgore has not “made a substantial showing of the

denial of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we deny a COA.



       1
        We liberally construe Kilgore’s pro se filings. See Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
                                I.       BACKGROUND

       In 1994, Kilgore was convicted of criminal solicitation to commit first degree

murder (contracting to kill his wife) and being a habitual criminal. He was sentenced to

life imprisonment. The Colorado Court of Appeals affirmed his conviction and sentence.

See People v. Kilgore, 95CA0166 (Colo. Ct. App. Feb. 20, 1997) (unpublished). The

Colorado Supreme Court denied review on October 6, 1997. Between June 19, 1998, and

March 12, 2003, Kilgore filed six post-conviction motions, four were denied by the

Colorado state courts and two do not appear to have been addressed.2

       On August 9, 2005, Kilgore attempted to file a habeas corpus action in federal

court. The district court concluded his application was deficient and granted him thirty

days to file a proper application. Kilgore failed to do so. The court granted two more

thirty-day extensions of time. After the third extension, Kilgore requested a stay and

abeyance of his application. The court denied this request. On November 21, 2005, the

district court dismissed his application without prejudice for failure to cure the

deficiency. Kilgore requested reconsideration of the denial of his motion for stay and

abeyance; the court denied reconsideration on November 28, 2005. He did not appeal.


       2
        The government produced a report showing docket activity in the Colorado state
courts. This report shows Kilgore filed a post-conviction motion on June 19, 1998; the
motion was denied by the trial court, affirmed on appeal and the Colorado Supreme Court
denied certiorari review. On November 13, 2000, he filed a second post-conviction
motion; the trial court denied it and the Colorado Court of Appeals dismissed the
subsequent appeal. His third and fourth post-conviction motions were filed on January
12, 2001, and August 29, 2001, respectively; the trial court denied both motions and the
Colorado Supreme Court ultimately denied certiorari review. The docket report also
shows Kilgore filed a post-conviction motion on April 18, 2001, and another on March
12, 2003. The record does not indicate the disposition of either.

                                                 2
         On February 6, 2006, Kilgore filed another federal habeas corpus application

which he amended on March 17 and May 4 of that year. The district court instructed

Kilgore to provide information about his state-court challenges so it could determine

whether his petition was filed within the one-year time period required under the

Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d).

After three thirty-day extensions, the district court, on its own motion, dismissed

Kilgore’s petition without prejudice for failure to comply with the court’s orders. Kilgore

appealed and we reversed, holding that in light of Jones v. Bock, 549 U.S. 199 (2007)

“the district court cannot dismiss a habeas petition as untimely unless untimeliness is

clear from the face of the petition, or unless the state establishes untimeliness as an

affirmative defense.” Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir.

2008).

         On remand, the State moved to dismiss Kilgore’s petition and provided documents

showing Kilgore’s petition was untimely. Upon review of the State’s documents, the

court determined 501 countable days passed before Kilgore filed his 2006 application for

habeas relief. Between January 5, 1998, (the date Kilgore’s conviction became final),

and June 19, 1998, (the date he filed his first motion for post-conviction relief under

Colorado Rule of Criminal Procedure 35(c)), 165 days had passed. Pursuant to 28 U.S.C.

§ 2244(d)(2), the court tolled the period of time during which Kilgore’s post-conviction

motions were pending in state court. However, 336 days elapsed between March 7, 2005

(the date the Colorado Supreme Court denied certiorari review of Kilgore’s last motion

for post-conviction relief) and February 6, 2006 (the date Kilgore filed his current

                                                  3
application for habeas review). It rejected Kilgore’s argument that his 2005 federal

habeas action tolled the limitations period and determined he was ineligible for equitable

tolling. The court concluded he failed to file within AEDPA’s one-year period of

limitations and dismissed his petition as untimely. It also found Kilgore’s “efforts . . . do

not demonstrate either the existence of an extraordinary situation when circumstances

beyond his control prevented him from filing a timely application . . . or diligent efforts

to pursue his claims.” (R. Vol. I, Doc. 45 at 9.) It therefore determined he was ineligible

for equitable tolling. Accordingly, the district court dismissed his action. It also denied

his request for a COA, one he renews with this Court.

       Kilgore appealed, arguing the district court abused its discretion because it did not

properly toll the AEDPA period of limitations or apply equitable tolling.

                                II.       DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

       The district court’s procedural dismissal means Kilgore must demonstrate both

that “jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

                                                  4
that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

A.     Calculation of Time Under AEDPA

       AEDPA states:

       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. The limitation period shall run from . . . the date on which the
       judgment became final by the conclusion of direct review or the expiration
       of the time for seeking such review . . . .

       28 U.S.C. § 2244(d)(1). It allows for the limitations period to be tolled, stating,

“[t]he time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

Kilgore argues the limitations period should have been tolled under § 2244(d)(2) during

the time his 2005 federal habeas action was pending. He also asserts that because two of

his state post-conviction motions remain pending in the Colorado courts, the statute of

limitations remains tolled until these motions are resolved.3

       1.     2005 Federal Habeas Action

       Kilgore claims the court erred in failing to toll the time during which his 2005

federal habeas action was pending. Kilgore’s 2005 federal application is not a form of

collateral review sufficient to toll the limitations period under § 2244(d)(2). See Duncan


       3
         Kilgore also claims his first state post-conviction motion was filed on December
30, 1997. The record shows otherwise. Kilgore filed a motion to proceed ifp and for a
free transcript that date. He did not file his first state post-conviction motion until June
19, 1998.

                                                  5
v. Walker, 533 U.S. 167, 181 (2001) (“§ 2244(d)(2) does not toll the limitation period

during the pendency of a federal habeas petition”). Moreover, Kilgore’s failure to appeal

from the district court’s order dismissing his 2005 federal habeas action forecloses further

consideration of the issues he now raises regarding that dismissal.

       2.     Unresolved State Post-Conviction Motions

       Kilgore also argues the limitations period has remained tolled from the time he

filed his first state post-conviction motion because two motions remain pending. He has

not produced evidence concerning these allegedly unresolved motions. It is unclear

whether they were properly filed or whether they in fact remain pending. Indeed, the

docket caption on one of the motions alleges a claim for ineffective assistance of post-

conviction counsel, a claim already rejected by the Colorado Court of Appeals. Kilgore

did not present this issue to the district court and in fact discussed only the four post-

conviction motions resolved by the Colorado courts. Generally, we will not address

issues raised for the first time on appeal. See United States v. Mora, 293 F.3d 1213, 1216

(10th Cir. 2002). In spite of our charitable reading of pro se petitions, we see no reason

to depart from our general rule here.4

B.     Equitable tolling

       After the district court correctly concluded Kilgore’s habeas application was not



       4
         Our review of the limited information in the record suggests the motions were
untimely under Colorado law. See Colo. Stat. Ann. § 16-5-402 (three-year statute of
limitations applies to collateral attacks of non-Class 1 felony convictions). Because
Kilgore’s motions were not timely, they were not “properly filed” so as to toll the period
of limitation under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

                                                  6
timely filed, it addressed Kilgore’s remaining arguments within the context of equitable

tolling. We review a district court’s decision to deny equitable tolling for an abuse of

discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling

applies only in “rare and exceptional circumstances.” Laurson v. Leyba, 507 F.3d 1230,

1232 (10th Cir. 2007) (quotations omitted). “Generally, equitable tolling requires a

litigant to establish two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d

925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of

establishing that equitable tolling should apply. Pace, 544 U.S. at 418.

       Kilgore contends his diligent efforts to gather the documents required by the court

were thwarted by the State of Colorado’s failure to produce documents. He alleges he

“was forced to request extensions of time in order to continue his attempts to obtain the

[documents]” and he “was doing all he could to obtain the information.” (Appellant’s Br.

at 3, 3c.) Record evidence of these efforts, however, is lacking. Kilgore offers only two

letters dated September 25, 2006 - ten months after his 2005 petition was dismissed –

where he requested copies of the necessary documents from the Colorado Court of

Appeals and the Colorado State Archives - Criminal Records Division. At that time, he

was already on his third extension of time for his 2006 habeas action. The district court

properly declined to apply equitable tolling.

       Kilgore has not shown that jurists of reason would find it debatable whether his

petition states a valid claim of the denial of a constitutional right and the district court

was correct in its procedural ruling. He is not entitled to a COA.

                                                   7
C.     Motion to Proceed In Forma Pauperis

       In order to proceed ifp on appeal, Kilgore must “show a financial inability to pay

the required fees and the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991) (emphasis added). Because Kilgore has failed to make a

nonfrivolous argument, we deny his request to proceed ifp. He is directed to remit the

full amount of the filing fee within twenty days. See Kinnell v. Graves, 265 F.3d 1125,

1129 (10th Cir. 2001) (dismissal of an appeal does not relieve appellant of the obligation

to pay the appellate filing fee in full).

       We DENY Kilgore’s request for a COA and his motion to proceed ifp. His appeal

is DISMISSED.

                                             Entered by the Court:

                                             Terrence L. O’Brien
                                             United States Circuit Judge




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