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

                            FOR THE TENTH CIRCUIT                        November 15, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 CHARLES WHITTEN,

       Petitioner - Appellant,

 v.                                                         No. 19-1289
                                                (D.C. No. 1:19-CV-00721-LTB-GPG)
 DEAN WILLIAMS; THE ATTORNEY                                 (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Petitioner-Appellant Charles Whitten, a state inmate appearing pro se, seeks a

certificate of appealability (COA) allowing him to appeal from the district court’s

denial of his 28 U.S.C. § 2254 application as time-barred and not subject to equitable

tolling. Whitten v. Williams, No. 19-cv-00721-LTB-GPG (July 26, 2019). Because

the district court’s procedural ruling is not reasonably debatable, we deny a COA and

dismiss the appeal.




      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In 2012, Mr. Whitten was convicted of two counts of witness intimidation and

four counts of witness tampering in Colorado state court. Mr. Whitten’s conviction

was affirmed on direct appeal and the Colorado Supreme Court denied his petition

for certiorari on April 20, 2015. His conviction became final on July 20, 2015.

Thereafter, Mr. Whitten sought state post-conviction relief. The assigned magistrate

judge determined that the one-year limitation period, 28 U.S.C. § 2244(d), for Mr.

Whitten to file this action expired on September 26, 2018. Mr. Whitten did not file

until March 11, 2019.

      To obtain a COA, Mr. Whitten must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court

denies a § 2254 petition on procedural grounds, the movant must demonstrate “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). Mr. Whitten argues that his appellate counsel told him

that he had one year from the denial of state post-conviction relief to file his federal

habeas petition and that his constitutional claims are reasonably debatable. The

district court’s conclusion that Mr. Whitten’s equitable tolling claim did not present

extraordinary circumstances and that he had not demonstrated actual innocence are

not reasonably debatable. See Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir.

2011); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).



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We DENY a COA, DENY IFP, and DISMISS the appeal.


                              Entered for the Court


                              Paul J. Kelly, Jr.
                              Circuit Judge




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