(D. Ct. Colo.) (D. Ct. No. 1:06-CV-00333-ZLW).
The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS, APPLICATION FOR CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL
Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.
Kyle Kilgore, a Colorado state prisoner appearing pro se,*fn1 seeks a certificate of appealability (COA). He wants to appeal from the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and moves to proceed in forma pauperis (ifp) on appeal. Because Kilgore has not "made a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), we deny a COA.
In 1994, Kilgore was convicted of criminal solicitation to commit first degree murder (contracting to kill his wife) and being a habitual criminal. He was sentenced to life imprisonment. The Colorado Court of Appeals affirmed his conviction and sentence. See People v. Kilgore, 95CA0166 (Colo. Ct. App. Feb. 20, 1997) (unpublished). The Colorado Supreme Court denied review on October 6, 1997. Between June 19, 1998, and March 12, 2003, Kilgore filed six post-conviction motions, four were denied by the Colorado state courts and two do not appear to have been addressed.*fn2
On August 9, 2005, Kilgore attempted to file a habeas corpus action in federal court. The district court concluded his application was deficient and granted him thirty days to file a proper application. Kilgore failed to do so. The court granted two more thirty-day extensions of time. After the third extension, Kilgore requested a stay and abeyance of his application. The court denied this request. On November 21, 2005, the district court dismissed his application without prejudice for failure to cure the deficiency. Kilgore requested reconsideration of the denial of his motion for stay and abeyance; the court denied reconsideration on November 28, 2005. He did not appeal.
On February 6, 2006, Kilgore filed another federal habeas corpus application which he amended on March 17 and May 4 of that year. The district court instructed Kilgore to provide information about his state-court challenges so it could determine whether his petition was filed within the one-year time period required under the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d). After three thirty-day extensions, the district court, on its own motion, dismissed Kilgore's petition without prejudice for failure to comply with the court's orders. Kilgore appealed and we reversed, holding that in light of Jones v. Bock, 549 U.S. 199 (2007) "the district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense." Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008).
On remand, the State moved to dismiss Kilgore's petition and provided documents showing Kilgore's petition was untimely. Upon review of the State's documents, the court determined 501 countable days passed before Kilgore filed his 2006 application for habeas relief. Between January 5, 1998, (the date Kilgore's conviction became final), and June 19, 1998, (the date he filed his first motion for post-conviction relief under Colorado Rule of Criminal Procedure 35(c)), 165 days had passed. Pursuant to 28 U.S.C. § 2244(d)(2), the court tolled the period of time during which Kilgore's post-conviction motions were pending in state court. However, 336 days elapsed between March 7, 2005 (the date the Colorado Supreme Court denied certiorari review of Kilgore's last motion for post-conviction relief) and February 6, 2006 (the date Kilgore filed his current application for habeas review). It rejected Kilgore's argument that his 2005 federal habeas action tolled the limitations period and determined he was ineligible for equitable tolling. The court concluded he failed to file within AEDPA's one-year period of limitations and dismissed his petition as untimely. It also found Kilgore's "efforts . . . do not demonstrate either the existence of an extraordinary situation when circumstances beyond his control prevented him from filing a timely application . . . or diligent efforts to pursue his claims." (R. Vol. I, Doc. 45 at 9.) It therefore determined he was ineligible for equitable tolling. Accordingly, the district court dismissed his action. It also denied his request for a COA, one he renews with this Court.
Kilgore appealed, arguing the district court abused its discretion because it did not properly toll the AEDPA period of limitations or apply equitable tolling.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The district court's procedural dismissal means Kilgore must demonstrate both 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). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not ...