                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         October 7, 2005
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                            Clerk of Court


 PHILIP M. BONAN,

       Petitioner - Appellant,
 v.
                                                        No. 05-1104
                                                    (D.C. No. 04-Z-2123)
 JAMES KEITH, and THE
                                                          (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents - Appellees.


                                      ORDER


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


      Philip Bonan, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. For substantially the same reasons set forth by the district court,

we DENY a COA and DISMISS.

      Bonan was convicted of four counts of sexual assault of a child by a person

in a position of trust. He was sentenced to consecutive prison terms that totaled

forty years. He filed two direct appeals, the second of which became final when

the Supreme Court denied a writ of certiorari on August 4, 1995. Three years and
one day later, on August 5, 1998, Bonan filed the first of three motions for state

collateral relief. All three motions were denied.

      Bonan filed a § 2254 petition in the court below on September 24, 2004. In

response to a order to show cause, Bonan argued that the doctrine of equitable

tolling justified his delay in filing his habeas petition. The court below concluded

that Bonan’s habeas petition was time-barred and dismissed. Failing to secure a

COA from that court, Bonan now seeks a COA from this court. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U.S.C. § 2244(d). It states:

      (1) 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 –




      1
         Bonan’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 Bonan 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 Bonan a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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          (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;
          (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of the
      United States is removed, if the applicant was prevented from filing
      by such State action;
          (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been newly
      recognized by the Supreme Court and made retroactively applicable
      to cases on collateral 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.
       (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.


Because this law went into effect on April 24, 1996, after Bonan’s conviction

became final, Bonan had until April 24, 1997 to file his petition. See United

States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

       Equitable tolling “is only available 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). Under 28 U.S.C. § 2244(d)(2), the time during which a properly filed

application for state post-conviction relief or other collateral review is pending

does not count towards the one-year statute of limitations. However, Bonan did

not file his first Colo. R. Crim. P. 35(c) motion until August 5, 1998, over one


                                         -3-
year after the statute of limitations had run. Bonan argues that he was conducting

research about the facts of his case during this period. That he spent three years –

from the date his conviction was finalized to the date he filed his first petition for

state collateral review – conducting research unimpeded by circumstances beyond

his control only proves that he is not eligible for equitable tolling. Bonan’s

petition is therefore time-barred.

      For the reasons set forth above, Bonan’s request for a COA is DENIED

and the appeal is DISMISSED. Appellant’s motion to proceed in forma pauperis

is granted.



                                        ENTERED FOR THE COURT




                                        Carlos F. Lucero
                                        Circuit Judge




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