                                                                          FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        February 7, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 ERIC MARSHALL,

       Petitioner-Appellant,

 v.                                                      No. 05-1431
                                                      (D.C. No. 05-Z-953)
 GARY GOLDER, and THE                                     (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents-Appellees.


         ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Eric Marshall, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition. For

substantially the same reasons set forth by the district court, we DENY

Marshall’s request for a COA and DISMISS.

      Marshall successfully appealed his twelve-year sentence for manslaughter

in the heat of passion by arguing that the trial court violated Colorado statutes by

enhancing his sentence mandatorily. On remand, the trial court once again

imposed a sentence beyond the presumptive range – this time in the exercise of its

discretion – and re-sentenced Marshall to twelve years’ imprisonment. Marshall
did not appeal this sentence, which became final on October 10, 1997, when the

time for seeking direct review expired. See Colo. App. R. 4(b).

      It was not until May 26, 2005, that Marshall filed his § 2254 petition in the

court below. In his petition, Marshall argued that the trial court was required by

Colorado law to resentence him within the presumptive range and lacked the

discretion to sentence him beyond the range. Finding that Marshall filed his

§ 2254 petition outside the applicable one-year limitation period, the district court

dismissed the action and subsequently denied Marshall’s request for a COA.

Marshall now seeks a COA from this court. 1

      Federal law provides that 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.” 28 U.S.C. § 2244(d)(1). This limitation period

begins on “the date on which the judgment became final by . . . the expiration of


      1
         Marshall’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) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). 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 Marshall to show “that reasonable jurists
could debate whether (or, for that matter, 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 Marshall a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

                                          2
time for seeking [direct] review.” Because Marshall’s sentence became final on

October 10, 1997, he had until October 10, 1998 to file a petition for habeas relief

in federal court. His petition, therefore, is time-barred.

      Liberally construing his brief, however, Marshall argues that we should

equitably toll the limitations period because his trial counsel failed to file an

appeal after he was resentenced. The one-year limitation period may be equitably

tolled only “when an inmate diligently pursues his claims and demonstrates that

the failure to timely file was caused by extraordinary circumstances beyond his

control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). We agree with

the district court that Marshall’s allegedly recent discovery that his trial counsel

failed to file a direct appeal does not demonstrate that Marshall diligently pursued

his claims or that he was precluded by extraordinary circumstances beyond his

control from filing a § 2254 petition in a timely manner.

      The district court correctly ruled that Marshall filed his § 2254 petition

outside the limitations period and has presented no argument warranting equitable

tolling. Marshall’s application for a COA is DENIED and the appeal is

DISMISSED. We GRANT Marshall’s motion to proceed in forma pauperis.


                                               ENTERED FOR THE COURT


                                               Carlos F. Lucero
                                               Circuit Judge


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