                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 19 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 KARL THORPE,

          Petitioner-Appellant,

 v.                                                          No. 99-1013
                                                               (D. Colo.)
 RICHARD A. SOARES; GALE NORTON,                         (D.Ct. No. 98-D-2239)
 Attorney General of the State,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously 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). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Karl Richard Thorpe, a state inmate appearing pro se, appeals the

district court’s dismissal of his habeas corpus petition filed pursuant to 28 U.S.C.

§ 2254, as time-barred and for failing to demonstrate cause and prejudice

justifying his procedural default. The district court also denied Mr. Thorpe’s

request for a certificate of appealability. We deny Mr. Thorpe’s request for a

certificate of appealability and motion to proceed in forma pauperis, and dismiss

his appeal.



      In 1984, a Colorado state trial court convicted Mr. Thorpe in two separate

cases for various felony infractions, including several counts of second-degree

burglary, first-degree sexual assault, theft, and menacing. In both cases, the state

trial court adjudicated Mr. Thorpe an habitual criminal and he received two

sentences of fifty-years imprisonment to run consecutively. The Colorado Court

of Appeals affirmed his conviction and sentence on November 6, 1986.

Thereafter, Mr. Thorpe filed several post-conviction motions in state district court

pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which the

state district court denied as successive. In 1997, Mr. Thorpe filed a motion

seeking post-conviction relief on matters not raised in his previous Rule 35

motions, including a claim the trial court failed to provide a speedy trial. The

state district court denied Mr. Thorpe’s motion as time-barred and for failure to


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allege facts, which, if true, constituted a justifiable excuse or excusable neglect

explaining why his present claims were not raised in his previous motions. On

April 2, 1998, the Colorado Court of Appeals affirmed the state district court’s

order.



         On October 14, 1998, Mr. Thorpe filed his § 2254 petition asserting the

state trial court erred in (1) adjudicated him as a habitual criminal for a burglary

offense he claims he never committed, and (2) denying him a speedy trial under

the Uniform Mandatory Disposition of Detainers Act. Mr. Thorpe also cursorily

noted a claim of “attorney client violation” without further explanation.



         The district court ordered Mr. Thorpe to show cause for his procedural

default in not timely presenting the speedy trial claim to the state court. In

response, Mr. Thorpe explained his default stemmed from his attorney’s refusal to

raise the speedy trial claim in one of his previous post-conviction motions. The

district court rejected this explanation in lieu of Mr. Thorpe’s series of post-

conviction motions filed over the years. After liberally construing Mr. Thorpe’s

pro se pleadings, the district court concluded he did not demonstrate cause or

prejudice for his procedural default, or that a fundamental miscarriage of justice

will occur if his claim is not considered. In addition, the district court dismissed


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Mr. Thorpe’s § 2254 petition as time-barred by the one-year limitation period in

28 U.S.C. § 2244(d).



      On appeal, Mr. Thorpe summarily alleges the district court failed to follow

federal and constitution habeas corpus law. Mr. Thorpe also renews his claim the

state court denied him a speedy trial and renews his cursory allegations his

attorney violated the attorney-client privilege but admits the state district court

previously dismissed this claim as time-barred.



      We review de novo the legal basis for the district court’s dismissal of Mr.

Thorpe’s § 2254 petition. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th

Cir.), cert. denied, 119 S. Ct. 378 (1998). We may dismiss Mr. Thorpe’s federal

habeas petition if he did not exhaust available state remedies by presenting his

claims to the state appellate court. See Coleman v. Thompson, 501 U.S. 722, 731

(1991). However, where state remedies are no longer available because of state

procedural default, a dismissal for failure to exhaust is not appropriate. See

Castille v. Peoples, 489 U.S. 346, 350-51 (1989). Instead, we look to see if Mr.

Thorpe can show cause for the default and actual prejudice resulting from the

alleged federal law violation, or that a fundamental miscarriage of justice will

occur if these claims are not considered. See Coleman, 501 U.S. at 750; Klein v.


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Neal, 45 F.3d 1395, 1400 (10th Cir. 1995). In this case, Mr. Thorpe defaulted

both his speedy trial and attorney-client claims, and our review of the record

shows Mr. Thorpe has not met the requisite cause and prejudice or miscarriage of

justice standards necessary to overcome his procedural default.



      In addition, we agree Mr. Thorpe’s petition is time-barred. The Anti-

Terrorism and Effective Death Penalty Act established a one-year limitation

period for filing habeas corpus petitions. See 28 U.S.C. § 2244(d)(1); Hoggro v.

Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). For prisoners, like Mr. Thorpe,

whose conviction became final before April 24, 1996, the one-year statute of

limitations does not begin to run until that date and ends April 23, 1997. Id. at

1225. Under § 2244(d), we toll the one-year limitation period only for the time

Mr. Thorpe had a “properly filed application” pending for state post-conviction

relief. 28 U.S.C. § 2244(d)(2); see also Hoggro, 150 F.3d at 1226. In this case,

we cannot count the time Mr. Thorpe spent seeking post-conviction relief because

his state habeas corpus petition was deemed untimely for procedural default by

both the trial and appellate state courts, and therefore, did not constitute “a

properly filed application” for the purposes of 28 U.S.C. § 2244. Hoggro, 150

F.3D at 1226 n.4. Mr. Thorpe’s untimely state post-conviction pleadings do not

toll the limitation period, making his § 2254 petition due on April 23, 1997.


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Because Mr. Thorpe did not file his petition until October 14, 1998, the district

court correctly determined his petition is time-barred by 28 U.S.C. § 2244(d).



      As for Mr. Thorpe’s allegation the district court failed to follow federal and

constitution habeas corpus law, we hold summary or conclusory claims are

insufficient to establish a constitutional violation. See Wise v. Bravo, 666 F.2d

1328, 1333 (10th Cir. 1981). Our review of the record shows Mr. Thorpe has

failed to make a substantial showing of the denial of a constitutional right as

required by 28 U.S.C. § 2254. See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.

1996), cert. denied, 519 U.S. 1081 (1997).



      Accordingly, we deny Mr. Thorpe’s application for a certificate of

appealability and motion to proceed in forma pauperis, and DISMISS his appeal.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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