                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAY 17 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 LAWRENCE W. FITZGERALD,

               Petitioner-Appellant,                    No. 04-1488
          v.                                         District of Colorado
 CARL ZENON, Attorney General                       (D.C. No. 04-Z-1166)
 of the State of Colorado,

               Respondent-Appellee.


                                       ORDER *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Lawrence W. Fitzgerald, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the

district court’s order denying his habeas corpus petition under 28 U.S.C. § 2254.

See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Fitzgerald has

failed to make “a substantial showing of the denial of a constitutional right,” we

deny his request for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                        I. Facts and Procedural History

      Mr. Fitzgerald is a prisoner in the custody of the Colorado Department of

Corrections. Following his guilty plea and conviction in 1992, Mr. Fitzgerald

filed a number of motions and petitions for post-conviction relief in Colorado

state courts, the most recent (so far as we know) being in December 2000. 1 The

Colorado Court of Appeals denied these December motions as untimely and the

Colorado Supreme Court denied certiorari on June 16, 2003.

      Mr. Fitzgerald filed a petition for habeas corpus pursuant to 28 U.S.C. §

2254 on June 2, 2004. The magistrate judge ordered Mr. Fitzgerald to show cause

why the application should not be denied as barred by the one year limitation

period in 28 U.S.C. 2244(d)(1). The magistrate judge detailed in his order the

specific dates on which Mr. Fitzgerald filed his various post-conviction motions

as well as the periods of time during which those motions were pending in the

state courts. The magistrate judge concluded, after taking into account various

periods of time when the limitation period was tolled, that the limitation period

ended on November 6, 2000. Mr. Fitzgerald contended that the limitation period

should have been further tolled pending resolution of the motions he filed in




      1
       Pursuant to his plea agreement, Mr. Fitzgerald did not directly appeal his
conviction.

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December 2000, and should not have begun to run again until June 16, 2003,

when the Colorado Supreme Court denied certiorari on his time-barred petitions.

      After considering Mr. Fitzgerald’s response to the order, the district court

dismissed his petition as time-barred. By a subsequent order, the district court

denied Mr. Fitzgerald’s request for a COA. Mr. Fitzgerald now requests this

Court to grant a COA.

                                     II. Analysis

      A COA may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a habeas

petition was denied solely on procedural grounds, a petitioner must show “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). “[B]oth showings [must] be made before

the court of appeals may entertain the appeal.” Id. at 485. If a procedural bar is

“plain” and “the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. at 484.




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      The one year limitation for filing habeas petitions following final judgment

may be tolled during “the time . . . a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or

claim is pending . . . .” 28 U.S.C. § 2244(d)(2). An application for post-

conviction review is properly filed within the meaning of § 2244(d)(2) “when its

delivery and acceptance are in compliance with the applicable laws and rules

governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). These requirements

include, inter alia, “the place and time of filing.” Habteselassie v. Novak, 209

F.3d 1208, 1210-11 (10th Cir. 2000). A petition for post-conviction relief which

was not timely filed is not “properly filed” within the meaning of § 2244(d)(2).

Because his December filings were untimely, they were not “properly filed” and

did not toll the period for filing a federal habeas petition. Therefore, the district

court did not err in dismissing the petition as untimely.

      Mr. Fitzgerald raises two additional claims on appeal: (1) that mental

incompetency led to his failure to satisfy the timeliness requirement for his post-

conviction petition, and (2) that the district court judge should have recused

herself. However, Mr. Fitzgerald raised neither of these claims to the district




                                          -4-
court; thus, we will not consider them now. 2 See Trierweiler v. Croxton & Trench

Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996).

      Accordingly, we DENY Lawrence W. Fitzgerald’s request for a COA,

DENY his request to proceed in forma pauperis, and DISMISS this appeal.



                                              Entered for the Court,

                                              Patrick Fisher, Clerk




      2
       Although Mr. Fitzgerald made reference to his alleged mental
incompetency in his “motion to alter or amend judgment,” he did not then claim
that mental incompetency caused the procedural default.

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