Barron v. Ortiz

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LA V O N E B . B AR RO N ,
Petitioner - A ppellant, No. 06-1118
v. (D. Colorado)
JOE ORTIZ, Executive D irector, (D.C. No. 05-cv-2609-ZLW )
Colorado Department of Corrections,
and the A TTO RN EY G EN ER AL OF
THE STATE OF COLORADO,
Respondents - Appellees.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
Lavone B. Barron, a Colorado state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s order denying
his 28 U.S.C. § 2254 petition for habeas corpus as untimely filed. M r. Barron
also seeks to proceed in forma pauperis (“IFP”). In that § 2254 petition, M r.
Barron alleged a violation of his speedy trial rights, unlawful restraints, and lack
of jurisdiction by the state courts. For substantially the same reasons set forth by
the district court in its well-reasoned order, we deny M r. Barron’s application for
a COA and dismiss this matter.
I. BACKGROUND
According to his § 2254 petition, M r. Barron was convicted of two counts
of second-degree burglary in the Denver County District Court. On October 6,
2000, he was sentenced to two concurrent forty-eight year sentences. M r. Barron
states that he filed an unsuccessful direct appeal. He contends the Colorado
Supreme Court denied his writ of certiorari on August 26, 2002, and the district
court noted that he did not seek review in the United States Supreme Court.
M r. Barron states that he did not file a postconviction motion in state court,
however, the district court found he did file a petition in state court for a writ of
habeas corpus alleging wrongful restraint in the Department of Corrections
through November 10, 2005. The district court concluded the petition was
necessarily filed sometime between November 10, 2005 and November 29, 2005,
the date on which the court denied the petition.
On December 12, 2005, M r. Barron filed this § 2254 petition in federal
court. 1 After determining that M r. Barron’s conviction became final on
November 26, 2002, the district court denied the petition as time-barred under the
one-year limitation period established by 28 U.S.C. § 2244(d). The district court
also noted that M r. Barron did not present any exceptional circumstances that
1
M r. Barron’s petition was received by the district court on December 12,
2005, but not stamped “filed” until December 23, 2005.
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might warrant equitable tolling. Finally, the district court also concluded that,
even if the petition was not time-barred, that M r. Barron failed to exhaust state
remedies. See 28 U.S.C. § 2254(b)(1)(A). The district court denied M r. Barron a
COA and this request followed.
II. DISCUSSION
A COA can only issue “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 encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). W hen a district court
has dismissed a habeas petition on procedural grounds, a certificate w ill only
issue when “jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484
(2000).
Under 28 U.S.C. § 2244(d)(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.” 28 U.S.C. § 2244(d)(1). In his COA application
before us, M r. Barron does not address the untimeliness of his petition, and he
does not raise equitable tolling. Instead, M r. Barron focuses on his underlying
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claims regarding his speedy trial rights, unlawful restraints, and lack of
jurisdiction by the state courts.
Based on our review of the record on appeal, the district court’s order, and
M r. Barron’s submissions to this court, we are not persuaded jurists of reason
would disagree with the district court’s disposition of M r. Barron’s § 2254
petition. In sum, reasonable jurists would agree with the district court that M r.
Barron’s case does not present “rare and exceptional circumstances” warranting
equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232 F.3d 799,
808 (10th C ir. 2000) (internal quotation marks omitted). Accordingly, we DENY
M r. Barron’s request for a CO A, DEN Y his motion to proceed IFP, and DISM ISS
the matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
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