                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 6, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 ANTHONY L. SANFORD,

              Petitioner - Appellant,                    No. 08-1274
       v.                                                (D. Colorado)
 FRED FIGUEROA, Warden;                        (D.C. No. 1:07-cv-02047-ZLW)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Anthony L. Sanford was convicted of aggravated robbery, kidnapping, and

theft in Colorado state court on November 20, 1998, and sentenced to 56 years’

imprisonment. His direct appeal was denied by the Colorado Court of Appeals,

and the Colorado Supreme Court denied his petition for a writ of certiorari on

September 12, 2001. On September 25, 2002, after twice seeking postconviction

relief in state court, Mr. Sanford filed an application for a writ of habeas corpus

under 28 U.S.C. § 2254 in the United States District Court for the District of

Colorado. He subsequently filed a motion in the district court to “delay

judgment” so that he could exhaust a final claim in state court. On January 14,

2004, the district court dismissed his application without prejudice to permit him
to try to exhaust his state remedies. After filing two additional motions for

postconviction relief in state court, Mr. Sanford filed a second § 2254 application

in the district court on October 1, 2007. The district court denied his second

application as time-barred under 28 U.S.C. § 2244(d). Mr. Sanford now seeks

review in this court. We deny a certificate of appealability (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.” 28 U.S.C. § 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 a case, a reasonable jurist




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could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further .” Id.

      Mr. Sanford does not challenge the district court’s calculation that his

present § 2254 application is untimely under 28 U.S.C. § 2244(d). Rather, he

complains of the dismissal on essentially two grounds. First, he contends that

applying § 2244(d) would deny him due process and equal protection of the law

because that would circumvent Colorado law, which provides three years after a

conviction to raise a collateral attack. But he could still avail himself of both

Colorado and federal postconviction remedies simply by seeking relief in

Colorado court within one year of his judgment of conviction. In any event,

Colorado law cannot supersede a federal statute.

      Second, Mr. Sanford complains that in his first § 2254 proceeding the

district court should not have dismissed his claim. He correctly states that the

dismissal, even though “without prejudice,” foreclosed any future federal habeas

relief because the one-year limitations period under § 2244(d) had expired while

his § 2254 claim was pending. See Duncan v. Walker, 533 U.S. 167, 181–82

2001). He argues that the court, rather than dismissing the case, should have

stayed and abated the action, as permitted by Rhines v. Weber, 544 U.S. 269

(2005). Mr. Sanford, however, did not appeal the prior dismissal without

prejudice. And the district court had no duty to warn him of the consequences of




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the dismissal. See Pliler v. Ford, 542 U.S. 225, 231 (2004). To afford equitable

tolling to Mr. Sanford in these circumstances would not be appropriate.

      Because no reasonable jurist could debate the correctness of the district

court’s ruling on Mr. Sanford’s second § 2254 application, we DENY his request

for a COA and DISMISS this appeal. We GRANT Mr. Sanford’s motion to

proceed in forma pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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