                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          July 5, 2005
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


MICHAEL LEE SHAPIRO,

       Petitioner-Appellant,
                                                       No. 04-4272
v.                                                   (District of Utah)
                                                (D.C. No. 2:04-CV-480-TS)
CLINT FRIEL, Warden,

       Respondent-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      This matter is before the court on Michael Lee Shapiro’s pro se requests for

(1) a certificate of appealability (“COA”) and (2) permission to proceed on appeal

in forma pauperis. We grant Shapiro’s request to proceed in forma pauperis.

Shapiro seeks a COA so that he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing

that no appeal may be taken from a “final order in a habeas corpus proceeding in

which the detention complained of arises out of process issued by a State court”

unless the petitioner first obtains a COA). Because Shapiro has not “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal.

      Shapiro was convicted in Utah state court of Rape and Forcible Sexual

Abuse. His conviction was affirmed by the Utah Court of Appeals on February 7,

2002; the conviction became final on March 11, 2002, after the thirty-day period

for seeking certiorari review in the Utah Supreme Court expired without Shapiro

having filed for a writ of certiorari. See Utah R. App. P. 48. Shapiro filed the

instant 28 U.S.C. § 2254 petition on May 24, 2004, more than two years and two

months after his convictions became final, and more than one year and two

months after the limitations period set out in 28 U.S.C. § 2244(d) had expired.

Because Shapiro was clearly not entitled to statutory tolling under § 2244(d)(2),

and because he had not argued that any equitable circumstances rescued him from

the statutory limitations period, the district court denied Shapiro’s petition as

barred by the limitations period set out in § 2244(d).

      Shapiro now seeks a COA to enable him to appeal the district court’s denial

of his § 2254 petition. A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve


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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). This “requires an overview of the claims in the habeas petition and a

general assessment of their merits.” Id. at 336. When, however, the district court

denies a habeas petition on procedural grounds without reaching the petitioner’s

underlying constitutional claim, a COA should issue only when the petitioner

shows, at least, 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).

      Having undertaken a review of Shapiro’s application for a COA and

appellate filings, the district court’s order, and the entire record before this court

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Shapiro is not entitled to a COA. Shapiro’s brief on appeal does

not even address the limitations issue upon which the district court based its

ruling, but instead focuses exclusively on the merits of his claims. In any event,

it is clear that Shapiro is not entitled to statutory tolling because he did not file

any state petitions for post-conviction relief that would trigger the application of

28 U.S.C. § 2244(d)(2). Likewise, the district court did not abuse its discretion in

declining to equitably toll the limitations period in the absence of any arguments

in that regard on the part of Shapiro. See Harms v. IRS, 321 F.3d 1001, 1006


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(10th Cir. 2003) (holding that district court’s decision on equitable tolling is

reviewed for abuse of discretion). The district court’s resolution of Shapiro’s

§ 2254 petition is not reasonably subject to debate and the issues he seeks to raise

on appeal are not adequate to deserve further proceedings. Accordingly, this

court DENIES Shapiro’s request for a COA and DISMISSES this appeal.

                                        Entered for the Court
                                        PATRICK FISHER, Clerk of Court


                                        By
                                                Deputy Clerk




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