                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 3, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 LARRY ALLEN CHIEFLY,

              Petitioner - Appellant,                    No. 09-6215
       v.                                             (W.D. Oklahoma)
 WARDEN PROVINCE,                               (D.C. No. 5:09-CV-00147-M)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Larry Chiefly seeks a certificate of appealability (COA) to appeal the

denial of his application under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A)

(requiring COA to appeal denial of § 2254 application). The United States

District Court for the Western District of Oklahoma denied the application on the

ground that it was untimely. See id. § 2244(d). We deny the application for a

COA and dismiss the appeal.

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

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. If the application was denied on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.” Id. “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.

      In this case no reasonable jurist could debate the correctness of the district

court’s determination that Mr. Chiefly’s application under § 2254 was untimely,

as explained in the excellent report and recommendation by the magistrate judge.

Indeed, in his brief before this court, Mr. Chiefly does not dispute that § 2244(d)

bars his claim. Rather, he challenges the constitutionality of that statutory

provision, at least as applied to his claim. But he did not raise that constitutional

challenge in district court; so it is not properly before us. See Hammon v. Ward,

466 F.3d 919, 926 n.8 (10th Cir. 2006).




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      Accordingly, we DENY Mr. Chiefly’s application for a COA and DISMISS

the appeal.

                                  ENTERED FOR THE COURT


                                  Harris L Hartz
                                  Circuit Judge




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