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

                                   TENTH CIRCUIT                               October 15, 2012

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
CHARLES CLIFTON FOMBY, JR.,

              Petitioner - Appellant,
v.                                                           No. 12-6111
                                                      (D.C. No. 5:11-CV-01466-D)
JUSTIN JONES,                                                (W.D. Okla.)

              Respondent - Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY,
               DENYING MOTION FOR LEAVE TO PROCEED
                   WITHOUT PREPAYMENT OF FEES,
                      AND DISMISSING APPEAL


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Charles Fomby, Jr., an Oklahoma state prisoner proceeding pro se,1 wants to

appeal from the dismissal of his 28 U.S.C. ' 2254 habeas petition. The district court

dismissed his petition because: 1) it was barred by the one year statute of limitations; 2)

Fomby had not established grounds for statutory tolling; and 3) he had not demonstrated

entitlement to equitable tolling. We deny his request for a Certificate of Appealability

(COA).



       1
        We liberally construe Fomby’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
                     I.    CERTIFICATE OF APPEALABILITY

        In his COA application and opening brief to this court, Fomby argues the merits

of his petition but does not address the fundamental problem leading to the dismissal: the

statute of limitations. “[A]rguments not briefed on appeal are waived.” United States v.

Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002). And while we make “some allowances

for the pro se plaintiff’s failure to cite proper legal authority, his confusion of various

legal theories, his poor syntax and sentence construction, or his unfamiliarity with the

pleading requirements,” at the same time, we “cannot take on the responsibility of

serving as the litigant’s attorney.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005) (quotation marks omitted). Because the statute of limitations

bars Fomby’s habeas petition, we cannot consider the merits of his claims.

                             II.   IN FORMA PAUPERIS

       The district court determined Fomby’s appeal was not taken in good faith and

denied him leave to proceed on appeal without prepayment of fees (in forma pauperis or

ifp). He renewed his request here.

       To obtain a waiver of prepayment of fees, “an appellant must show a financial

inability to pay the required filing fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” DeBardeleben

v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (emphasis added). An argument, like a

complaint, “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989) (describing when a complaint is frivolous). We

have reviewed Fomby’s filings and the district court record. Because he has not


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presented a reasoned, non-frivolous argument in support of the dispositive issue on

appeal, we deny his motion to waive prepayment of fees.

       We DENY the request for a COA and DISMISS this matter.

       Fomby is responsible for full payment of all filing and docketing fees. Payment

must be made to the Clerk of the District Court. See Kinnell v. Graves, 265 F.3d 1125,

1129 (10th Cir. 2001) (recognizing dismissal of an appeal does not relieve appellant of

the obligation to pay the filing and docket fees in full).

                                            Entered by the Court:

                                            Terrence L. O’Brien
                                            United States Circuit Judge




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