Scott v. Walkin , 178 F. App'x 822 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RAYMOND W. SCOTT,
Petitioner-Appellant, No. 05-1505
v. District of Colorado
GARY WALKIN; JOHN SUTHERS, (D.C. No. 05-CV-1732-ZLW)
The Attorney General of the
State of Colorado,
Respondents-Appellees.
ORDER *
Before MURPHY , SEYMOUR , and McCONNELL , Circuit Judges.
Raymond W. Scott, a state prisoner proceeding pro se , seeks a certificate of
appealability (COA) that would allow him to appeal the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that Mr. Scott has failed to make “a
substantial showing of the denial of a constitutional right,” we DENY his request
for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
This order is not binding precedent, except under the doctrines of law of
*
the case, res judicata, and collateral estoppel
In 2000, before a Colorado state court, Mr. Scott pleaded guilty to first-
degree burglary, second-degree burglary, and attempted second-degree sexual
assault. He received a sentence of twenty-three years in prison and five years of
parole. The conviction was entered on March 13, 2000, and under Colorado law
Mr. Scott had 45 days after entry of the judgment to file a notice of appeal. See
Colo. App. R. 4(b)(1). Because he brought no direct appeal in state court, his
conviction became final on April 27, 2000.
Under 28 U.S.C. § 2244(d)(1), a one-year period of limitation applies to
applications for a writ of habeas corpus brought by persons in custody pursuant to
the judgment of a state court. The limitation period begins to run on the latest of
several dates, including “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A). In this case, the expiration period expired on April 27, 2001.
Mr. Scott filed this petition on August 16, 2005, well outside the limitation
period. He argues that his petition is nonetheless timely because the period is
tolled during the pendency of “a properly filed application for state
postconviction review.” See id. § 2244(d)(2). Although Mr. Scott did eventually
seek postconviction relief in the Colorado courts, he waited until December 19,
2002 to do so. By that time, the limitation period for filing a petition for federal
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habeas relief had already expired. The fact that Colorado law sets a longer
limitation period to commence an action for collateral review in state court, see
Colo. Rev. Stat. § 16-5-402(1) (setting a limitation period of 3 years for all
felonies other than class 1 felonies), does not affect the one-year limit under §
2244(d)(1). Cf. Barnett v. Lemaster , 167 F.3d 1321, 1322–23 (10th Cir. 1999)
(holding that “[t]he limitations period ran unabated” prior to a petitioner’s filing
of a second petition for habeas relief in state court).
Mr. Scott’s petition is time-barred, and the district court properly denied it.
Accordingly, we DENY Raymond W. Scott’s request for a COA and DISMISS
this appeal.
Petitioner’s motion to proceed in forma pauperis is also DENIED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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