Williams v. Smelser ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICK Y LA VINE W ILLIAM S,
Petitioner-Appellant, No. 06-1126
v. (D.C. No. 05-cv-2402-ZLW )
DICK SM ELSER, W arden of (D . Colo.)
C.C.C.F.; and THE A TTORNEY
G EN ER AL O F TH E STA TE O F
C OLO RA D O ,
Respondents-Appellees.
OR DER
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
This is a pro se 28 U.S.C. § 2254 prisoner appeal. The underlying petition
for habeas corpus w as dismissed by the district court as untimely. Pursuant to
provisions of the Antiterrorism and Effective Death Penalty Act of 1996, the
district court denied a certificate of appealability. The trial court’s thorough
Order and Judgment of Dismissal, filed February 1, 2006, fully and correctly sets
forth why it dismissed the petition. W e see no reason to repeat that effort.
To obtain a certificate of appealability, Petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
In order to meet this burden, Petitioner 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. M cDaniel, 529 U.S. 473,
484 (2000) (quotation omitted).
W e have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s filing raises an issue which meets our standard for the grant of a
certificate of appealability. For substantially the reasons set forth by the district
court, we DEN Y Petitioner’s request for a certificate of appealability and
DISM ISS the appeal. The petition to proceed in forma pauperis is GR ANTED .
The M otion for Permission to File Amicus Curiae Brief is DENIED.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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