                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                   TENTH CIRCUIT                                  June 8, 2010

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
GERRY DALE ROADCAP,

Petitioner - Appellant,

v.                                                            No. 10-1091
                                                               (D. Colo.)
WARDEN KEVIN MILYARD; THE                           (D.C. No. 1:09-CV-02633-ZLW)
ATTORNEY GENERAL OF THE STATE
OF COLORADO, JOHN W. SUTHERS,

Respondents - Appellees.




             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this panel concludes that oral

argument would not materially assist the determination of this appeal. See Fed. R. App.

P. 34(a)(2); 10th Cir. R. 34.1(G). This case is submitted for decision on the briefs.

       Gerry Roadcap, a Colorado state prisoner appearing pro se,1 seeks to appeal from

the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Because Roadcap

has not “made a substantial showing of the denial of a constitutional right,” we deny him

a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(2). We also deny his

       1
        We liberally construe Roadcap’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
motion to proceed in forma pauperis (ifp) on appeal.

                                          I.

        In October 2000, a Colorado jury convicted Roadcap of second degree heat of

passion murder of his wife and committing a crime of violence. He was sentenced to 27

years imprisonment. The Colorado Court of Appeals affirmed his conviction and

sentence. People v. Roadcap, 78 P.3d 1108 (Colo. Ct. App. 2003). The Colorado

Supreme Court denied review on November 3, 2003. On March 10, 2004, Roadcap filed

a motion for reconsideration of his sentence, which was denied on March 11, 2004.

        On February 13, 2006, represented by private counsel, Roadcap filed a motion for

post-conviction relief in state court claiming, among other things, ineffective assistance

of counsel. Counsel filed a supplemental motion on November 13, 2006. At some point,

the state court ordered the parties to discuss arrangements for an evidentiary hearing.

However, on March 10, 2008, prior to any hearing, the court granted Roadcap’s counsel’s

motion to withdraw. Rather than rely on his attorney’s pleadings, Roadcap filed a pro se

petition for post-conviction relief on March 24, 2008. The court denied Roadcap’s

petition on March 26, 2008. The Colorado Court of Appeals affirmed in an unpublished

opinion on June 18, 2009. The Colorado Supreme Court denied review on October 13,

2009.

        On November 9, 2009, Roadcap filed his § 2254 petition asserting eleven claims.

The district court dismissed his petition as untimely because it was filed after the one-

year period of limitations imposed by the Antiterrorism and Effective Death Penalty Act

(AEDPA) had already run and Roadcap was not entitled to statutory or equitable tolling.

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                                           II.

       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).2 The district court’s procedural dismissal means

Roadcap 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 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 in relevant part:

       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 latest of – (A) the date on
       which the judgment became final by the conclusion of direct review or the
       expiration of the time for seeking such review . . . or . . . (D) the date on
       which the factual predicate of the claim or claims presented could have
       been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Crediting Roadcap with the 37 days his motion for

reconsideration of his sentence was pending before the state court and the time for an


       2
         Roadcap did not seek a COA from the district court. He filed a notice of appeal
then filed an application for a COA and a motion to proceed ifp on appeal with this Court.


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appeal of that decision, the district court concluded the statute of limitations began to run

on March 21, 2004.3 Therefore, Roadcap had until March 21, 2005, in which to file his §

2254 petition. Thus, Roadcap’s § 2254 petition, filed on November 9, 2009, was

untimely.

B.     Statutory Tolling

       Roadcap claims the statute of limitations did not begin to run until May 2008

under § 2244(d)(1)(D). Prior to his conviction in Colorado state court, Roadcap was

subject to a military proceeding based on his wife’s murder which resulted in his

dishonorable discharge from the military. He claims the state court “withheld” the record

of these proceedings from the record on appeal. (R. Vol. I at 32.) He argues he could not

have known this portion of the record was withheld until he requested the appellate

transcripts to develop his post-conviction claims in May 2008. Without this knowledge,

he contends, he did not know the factual predicate for his double jeopardy claim and his

current ineffective assistance of trial counsel claims.

       The record demonstrates otherwise. First, there is nothing in the record to indicate

the state trial court “withheld” any records requested for appeal.4 Second, Roadcap


       3
          The 90-day period Roadcap had to file a petition for writ of certiorari to
the United States Supreme Court from the denial of his motion for reconsideration
of his sentence did not toll the statute of limitations under 28 U.S.C. § 2244(d)(2).
See Lawrence v. Florida, 549 U.S. 327, 337 (2007).
        4
          At trial, Roadcap’s counsel successfully moved to have the military
records and transcripts suppressed under several claims of privilege. As stated
below, appellate counsel did not deem the double jeopardy issue sufficiently
supported by the record for direct appeal. Thus, the transcripts of the military
proceedings were not considered by the jury or relevant to the issues raised before
the Colorado Court of Appeals.

                                             -4-
discussed the double jeopardy claim with his counsel prior to his direct appeal and was

told the record “was simply too vague as to the nature and outcome of the military

proceedings.” (Id. at 354.) Thus, the basis of his petition could have been discovered

through the exercise of due diligence as of the date of judgment. Roadcap offers no

reason why he could not have requested the records prior to 2008.

       Roadcap also argues the limitations period should be tolled under 28 U.S.C. §

2244(d)(2) because his February 13, 2006 state post-conviction petition was timely filed

under Colorado law. See 28 U.S.C. § 2244(d)(2) (“The 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.”). But, as the district court correctly noted, “a state court

petition . . . that is filed following the expiration of the federal limitations period cannot

toll that period because there is no period remaining to be tolled.”5 Tinker v. Moore, 255

F.3d 1331, 1333 (11th Cir. 2001) (quotations omitted); see also Fisher v. Gibson, 262

F.3d 1135, 1142-43 (10th Cir. 2001).

C.     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,


       5
        Roadcap also claims the AEDPA deadline should be tolled because the Colorado
courts have not decided the post-conviction motions filed by his former attorney.
However, those motions were also filed after the AEDPA deadline had passed.


                                              -5-
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).

       Roadcap contends he is actually innocent of his wife’s murder. He bases his claim

primarily on the coroner’s report which estimated the time of his wife’s death at 1:30

p.m. It is uncontested Roadcap was in custody for the murder earlier that day.6

However, as the district court correctly found, “he fail[ed] to demonstrate that he pursued

his actual innocence claim diligently.” (R. Vol. I at 538.) He was aware of this evidence

long before he filed his petition for post-conviction relief in state court in 2006 but did

not pursue any post-conviction remedies prior to the time the period of limitations

expired.

D.     Motion to Proceed In Forma Pauperis

       Roadcap filed a motion to proceed ifp on appeal with the district court. It denied

his motion, finding the appeal “is not taken in good faith.” (R. Vol. I at 547.) He renews

his motion here. To proceed ifp on appeal “an appellant must show a financial inability

to pay the required filing 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,


       6
         At trial, Roadcap claimed he killed his wife only in self-defense and in defense
of his child. He did not claim he had not killed his wife. In his state petition for post-
conviction relief, he argued his counsel was ineffective because she failed to argue
actual/factual innocence because the resuscitation efforts on his wife could have caused
asphyxiation. His argument did not mention the time of death he relies on now.


                                             -6-
937 F.2d 502, 505 (10th Cir. 1991) (emphasis added). An appeal on a matter of law is

frivolous where “[none] of the legal points [are] arguable on their merits.” Anders v.

California, 386 U.S. 738, 744 (1967). We have liberally reviewed Roadcap’s motion to

proceed ifp, his application for a COA (with accompanying brief) and the district court

record. His arguments are contrary to settled law and he makes no reasoned argument for

modification of that law. In short, he has not presented a reasoned, non-frivolous

argument in support of the issues raised on appeal.

       We DENY Roadcap’s motion to proceed ifp on appeal. He must immediately pay

the filing and docket fees in full. 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 Roadcap’s request for a COA and DISMISS this matter.



                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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