                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     March 26, 2009
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT



 STEVEN R. WILSON,

          Petitioner-Appellant,
 v.                                                      No. 08-1397
 AL ESTEP, Warden, Freemont                   (D.C. No. 08-cv-0884-ZLW-BNB)
 Correctional Facility; JOHN W.                         (D. Colorado)
 SUTHERS, The Attorney General of
 the State of Colorado,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



      Steven R. Wilson, a Colorado state prisoner appearing pro se, 1 seeks a

certificate of appealability (“COA”) in order to challenge the district court’s

denial of his 28 U.S.C. § 2254 application for federal habeas relief. Because

Wilson has failed to satisfy the standards for the issuance of a COA, we deny his

request and dismiss the matter.


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        As he is proceeding pro se, we have construed Wilson’s pleadings
liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
                                          I.

      Wilson was tried by jury and found guilty of attempted second-degree

murder, first-degree assault, first-degree assault upon a sudden heat of passion,

first-degree sexual assault, first-degree criminal trespass, first-degree aggravated

motor vehicle theft, second-degree kidnapping, and harassment. The jury found

that four of these counts were crimes of violence, and on April 13, 1999, Wilson

was sentenced to a total of 34 years’ imprisonment.

      On direct appeal, Wilson claimed: (1) the trial court improperly admitted

evidence of a 911 recording; (2) the evidence was insufficient to support his

conviction for first-degree sexual assault; (3) the trial court improperly instructed

the jury with respect to his conviction for second-degree kidnapping being a

crime of violence; and (4) his sentences for first-degree sexual assault and

second-degree kidnapping should have been imposed concurrently. The Colorado

Court of Appeals vacated the finding that the second-degree kidnapping

conviction was a crime of violence, affirmed in all other respects, and remanded

for resentencing on the second-degree kidnapping conviction. Colorado v.

Wilson, No. 97CR2521 (Colo. Ct. App. Nov. 30, 2000). On April 23, 2001, the

Colorado Supreme Court denied certiorari review. On June 15, 1991, the state

trial court resentenced Wilson to 26 years’ imprisonment. Wilson did not appeal

this sentence.

      Over four months later, on November 21, 2001, Wilson filed a motion for

                                          2
sentence reconsideration in the state trial court. The motion was filed 159 days

after Wilson’s sentence was entered, beyond the 120-day period allowed under

Rule 35(b) of the Colorado Rules of Criminal Procedure. 2 The state trial court,

however, considered the merits of the motion and ultimately denied it on

December 4, 2001. Wilson did not appeal this denial.

      Two months later, on February 6, 2002, Wilson filed an “Amended Motion

to Reconsider,” and in March 2002 filed additional supporting documents. The

state trial court never ruled on this motion. In July and August 2002, Wilson and

his family sent letters to the state trial court concerning the amended motion, and

on August 28, 2002, the state trial court advised Wilson in a letter that it had

already reconsidered his sentence pursuant to the first Rule 35(b) motion, and that



      2
          Rule 35(b) states:

              Reduction of Sentence. The court may reduce the sentence
              provided that a motion for reduction of sentence is filed
              (1) within 120 days after the sentence is imposed, or (2)
              within 120 days after receipt by the court of a remittitur
              issued upon affirmance of the judgment or sentence or
              dismissal of the appeal, or (3) within 120 days after entry
              of any order or judgment of the appellate court denying
              review or having the effect of upholding a judgment of
              conviction or sentence. The court may, after considering
              the motion and supporting documents, if any, deny the
              motion without a hearing. The court may reduce a
              sentence on its own initiative within any of the above
              periods of time.

Colo. R. Crim. P. 35(b).

                                          3
it would not do so again.

      Wilson next filed a state court application for post-conviction relief

pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure 3, on April 14,

2003, and a supplemental motion on August 4, 2003. On April 30, 2004,

Wilson’s appointed counsel filed another supplemental motion. In his Rule 35(c)

motion, Wilson raised the following claims: (1) ineffective assistance of trial

counsel during trial; (2) ineffective assistance of trial counsel during post-trial

proceedings; (3) prosecutor misconduct regarding discovery and disclosure; (4)

failure of the trial court to grant a continuance; and (5) ineffective assistance of

appellate counsel.

      On May 27, 2005, following a hearing, Wilson’s Rule 35(c) motion was

denied. Colorado v. Wilson, No. 97 CR 2521 (Colo. Dist. Ct. May 27, 2005).

The Colorado Court of Appeals affirmed this denial on September 30, 2007.

Colorado v. Wilson, No. 05CA1416 (Colo. Ct. App. Sept. 30, 2007). On March

17, 2008, the Colorado Supreme Court denied certiorari review.

      In April 2008, Wilson filed his habeas petition with the federal district

court. Before the federal district court, Wilson raised the following claims for

relief: (1) double jeopardy based on the consecutive rather than concurrent nature



      3
        Rule 35(c) states that “every person convicted of a crime is entitled as a
matter of right to make application for postconviction review.” Colo. R. Crim. P.
35(c)(2).

                                           4
of his sentences; and (2) ineffective assistance of post-trial counsel. The district

court did not address Wilson’s claims directly, but rather addressed respondents’

contention that Wilson’s petition was barred by the one-year limitations period

applicable to § 2254 petitions. The district court ultimately found that Wilson’s

petition was time-barred, and denied Wilson’s application for a COA.

      Wilson has since filed a timely notice of appeal, as well as an application

for a COA.

                                          II.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). In order to make that showing, a prisoner must

demonstrate “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 quotations omitted).

                                          III.

      Wilson seeks a COA with respect to all the issues raised in his federal

habeas petition. For the reasons that follow, we conclude that he has failed to

                                           5
satisfy the standards for issuance of a COA with respect to any of these issues,

because his petition is time-barred.

      Section 2254 petitions have a one-year statute of limitations:

             (1) A 1-year period of limitation shall apply to an
             application for a writ of habeas corpus by a person in
             custody pursuant to the judgment of a State court. The
             limitation period shall run from the latest of—

                   (A) the date on which the judgment became final by
                   the conclusion of direct review or the expiration of
                   the time for seeking such review;

                   (B) the date on which the impediment to filing an
                   application created by State action in violation of
                   the Constitution or laws of the United States is
                   removed, if the applicant was prevented from filing
                   by such State action;

                   (C) the date on which the constitutional right
                   asserted was initially recognized by the Supreme
                   Court, if the right has been newly recognized by the
                   Supreme Court and made retroactively applicable to
                   cases on collateral review; or

                   (D) the date on which the factual predicate of the
                   claim or claims presented could have been
                   discovered through the exercise of due diligence.

             (2) The time during which a properly filed application for
             State post-conviction or other collateral review with
             respect to the pertinent judgment or claim is pending shall
             not be counted toward any period of limitation under this
             subsection.

28 U.S.C. § 2244(d) (emphasis added).

      The district court concluded that: (1) Wilson’s conviction became final, and


                                         6
the one-year limitations period for filing a federal habeas petition began running,

on July 30, 2001, after the forty-five day period for filing a notice of appeal after

his June 15, 2001 resentencing had lapsed; (2) Wilson’s one-year limitations

period was not tolled during the fourteen days Wilson’s Rule 35(b) motion was

pending because the Rule 35(b) motion was not “properly filed” as it was filed

outside the 120 days permitted under the Rule; 4 (3) Wilson’s February 6, 2002

amended Rule 35(b) motion and letters did not toll the limitations period because

they were also untimely filed; (4) the one-year limitations period therefore

expired on July 30, 2002, which was eight and one-half months prior to his Rule

35(c) filing, and because Wilson’s Rule 35(c) motion was filed after the one-year

limitations period expired, it did not toll the limitations period; and (5) Wilson

stated no basis for equitable tolling of the limitations period.

      The district court in this case correctly outlined the controlling standards

for assessing the timeliness of a federal habeas petition. As the district court

noted, Congress has “established a one-year period of limitations for habeas

petitions.” Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28

U.S.C. § 2244(d)(1)). The one-year limitations period generally starts running


      4
        The district court found that this was true despite the fact that the state
court considered the Rule 35(b) motion. See Gibson v. Klinger, 232 F.3d 799,
805-06 (10th Cir. 2000) (concluding that a state court’s decision to consider an
appeal out of time does not transform the petitioner’s post-conviction filing into a
“properly filed” application so as to toll the limitations period for filing a federal
habeas petition).

                                           7
from “the date on which the [state court] judgment became final by the conclusion

of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). The one-year limitations period is, however, tolled by “[t]he

time during which a properly filed application for State post conviction relief . . .

is pending.” Id. § 2244(d)(2) (emphasis added). Finally, the limitations period

may also, in rare circumstances, “be subject to equitable tolling.” Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling “is only available when an

inmate diligently pursues his claims and demonstrates that the failure to timely

file was caused by extraordinary circumstances beyond his control.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

      After reviewing the record on appeal, we fully agree with the district court

that Wilson’s federal habeas petition was untimely filed, and we conclude that no

reasonable jurist could find it debatable whether the district court was correct in

its procedural ruling. Wilson contends the district court erred because he has

established his entitlement to equitable tolling through his ineffective assistance

of post-trial counsel claim—Wilson claims his trial counsel was ineffective for

filing his Rule 35(b) motion outside the 120 days allowed. However, even if

Wilson had established ineffective assistance in post-trial counsel, the district

court alternatively found that even if Wilson’s Rule 35(b) motion was timely filed

and tolled the statute of limitations, Wilson’s petition would still be barred by the

one-year limitations period. Wilson’s November 21, 2001 Rule 35(b) motion, if

                                           8
“properly filed,” would have tolled the limitations period from November 21,

2001 until January 18, 2002, when the forty-five days expired for appealing the

state court’s December 4, 2001 denial of the motion had run. This tolling of fifty-

nine days does not change the ultimate outcome that Wilson’s one-year

limitations period had expired prior to his Rule 35(c) post-conviction relief filing.

      After examining the record on appeal, we agree with the district court, and

conclude that Wilson is not entitled to a COA on his claims.

                                         IV.

      After carefully reviewing Wilson’s appellate pleadings and the record on

appeal, we conclude he has failed to establish that “reasonable jurists could

debate whether” his habeas petition “should have been resolved in a different

manner or . . . w[as] adequate to deserve encouragement to proceed further.”

Slack, 529 U.S. at 484.

      We therefore DENY Wilson’s request for a COA and DISMISS the matter.

Petitioner’s motion to proceed in forma pauperis and motion to supplement the

record on appeal, are also DENIED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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