                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        March 27, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 RO NA LD JENN ING S FOG LE,

                 Petitioner-A ppellant,                  No. 06-1413
          v.                                              (D . Colo.)
 W A RD EN A L ESTEP and JO HN               (D.C. No. 05-CV-01491-PSF-PAC)
 SUTH ERS,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Ronald Jennings Fogle, 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 w e conclude that M r. Fogle has failed to make

“a substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. Id.




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       This order is not binding precedent, except under the doctrines of law of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

      On October 23, 2000, M r. Fogle pleaded guilty to two counts of aggravated

robbery, and w as sentenced by the Jefferson County district court to two

concurrent 32-year terms, to run concurrently with a 66-year sentence imposed for

a conviction in another county. Though he did not file a direct appeal from his

sentence, on M ay 11, 2001 he filed a petition for post-conviction relief in state

court. M r. Fogle did not properly appeal this decision to the Colorado Supreme

Court. On M arch 10, 2003, he filed another state post-conviction motion. All of

M r. Fogle’s claims in the M arch 10 petition were rejected by the Colorado state

trial court, and the Colorado Court of Appeals (“CCA”) affirmed. The Colorado

Supreme Court denied certiorari review on July 25, 2005.

      On August 1, 2005, M r. Fogle filed a § 2254 petition in the United States

District Court for the District of Colorado alleging (1) his sentence was

improperly enhanced; (2) he received ineffective assistance of counsel; (3) he was

denied an evidentiary hearing on his state court post-conviction relief petitions;

(4) the CCA denied him a limited remand and then ruled that his claims were not

properly before the court; and (5) the CCA unfairly denied his Apprendi claim

because he was proceeding pro se. In a detailed opinion, the magistrate judge

recommended that the district court dismiss all claims as untimely because the

petition was filed after expiration of the one–year statute of limitations under the

Antiterrorism and Effective Death Penalty Act (AEDPA ). Alternatively, the

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magistrate judge recommended that each claim be dismissed on the merits. The

district court adopted the recommendations of the magistrate judge and dismissed

the petition with prejudice.

                                    Discussion

      A prisoner may appeal the denial of a motion for relief under 28 U.S.C. §

2254 only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      The AEDPA requires a state prisoner to file for any federal habeas relief

within one year after his conviction becomes final “by the conclusion of direct

review or the expiration of the time for seeking such review.” 28 U.S.C. §

2244(d)(1)(A) (2000). The statute of limitations is tolled while petitioners pursue

state post-conviction claims. § 2244(d)(2).

      Under Colorado law , M r. Fogle had forty-five days to directly appeal his

conviction, Colo. App. R. 4(b)(1), which he chose not to do. After the time for

direct appeal passed, the A EDPA statute of limitations ran for 154 days until M r.

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Fogle filed his first petition for state post-conviction relief. Because M r. Fogle

was then pursuing his claims in state court, the statute of limitations was tolled

until the time passed for him to appeal the CCA’s denial of his petition. The

AEDPA clock then ran from July 27, 2002 until M r. Fogle filed his second state

post-conviction motion on M arch 10, 2003— an additional 225 days . His second

state petition was pending in state court through August 5, 2005, five days after

he filed his § 2254 petition in federal court. By this time, M r. Fogle had

exceeded the statute of limitations by fourteen days.

      M r. Fogle argues that the statute of limitations should have been tolled

through August 14, 2002 rather than July 27, 2002 because he filed an application

for certiorari with the Colorado Supreme Court after the CCA denied most of his

M ay 11 petition. For the purposes of A EDPA, “an application is ‘properly filed’

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). M r. Fogle did

not properly file his application for certiorari because he failed to provide the

appropriate number of copies to the court. Because M r. Fogle did not comply

with Colorado filing rules, his improper filing did not toll the statute of

limitations for filing his § 2254 petition.

      M r. Fogle also contends that the district court miscalculated the number of

days because it failed to take into account the “mailbox rule” in determining when

his court documents were filed. Under this rule, a prisoner’s papers are deemed

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filed when he gives them to a prison official rather than when they are actually

filed with the court. Houston v. Lack, 487 U.S. 266, 276 (1988); Hall v. Scott,

292 F.3d 1264, 1266 n.1 (10th Cir. 2002). To take advantage of the “mailbox

rule” a prisoner must document his use of the legal mail system or sign a

notarized affidavit stating the date he deposited the mail in the regular mail

system. Price v. Philpot, 420 F.3d 1158, 1166–67 (10th Cir. 2005). Though M r.

Fogle claims he provided his M arch 10, 2003 motion to prison officials on M arch

1, 2003, he makes only unsworn allegations to that effect. M oreover, even

accepting M r. Fogle’s argument that his documents should be deemed filed with

the court on M arch 1, 2003, he still filed his petition at least five days after the

statute of limitations had run.

      M r. Fogle also argues that the statute of limitations should be equitably

tolled. Though the one-year statute of limitations may be subject to equitable

tolling, such relief “is only available when an inmate diligently pursues his claims

and demonstrates that the failure to timely file w as caused by extraordinary

circumstances beyond his control.” M arsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). M r. Fogle claims for the first time in this appeal that the

“extraordinary circumstance” that warrants tolling here is the ineffective

assistance of counsel he received after his original conviction, which prevented

him from filing an appeal to his original conviction. He failed to raise this issue

in the district court, so we will not review it on appeal. United States v. Windrix,

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405 F.3d 1146, 1156 (10th Cir. 2005). Even if M r. Fogle had presented this claim

below, an ineffective assistance claim would not entitle him to equitable tolling.

See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not be a ground for

relief in a proceeding arising under § 2254.”) M r. Fogle has not presented any

extraordinary circumstances justifying the equitable tolling of the statute of

limitations.

      Because reasonable jurists could not differ in determining that M r. Fogle’s

petition is untimely, we need not reach the merits of his claims. 1

                                     Conclusion

      Accordingly, we D EN Y M r. Fogle’s request for a COA and DISM ISS this

appeal.

                                                     Entered for the Court,

                                                     M ichael W . M cConnell
                                                     Circuit Judge




      1
       The magistrate judge addressed his five claims in detail and found them to
be without merit.

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