Daniel v. Trani , 511 F. App'x 794 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
February 22, 2013
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ARLUS DANIEL, JR.,
Petitioner–Appellant, No. 12-1291
v. (D.C. No. 1:11-CV-03093-LTB)
TRAVIS TRANI, Warden; JOHN (D. Colo.)
WILLIAM SUTHERS, The Attorney
General of the State of Colorado,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition as time-barred. In 2007,
Petitioner was convicted of theft and securities fraud and sentenced to eighteen years’
imprisonment. His conviction and sentence were affirmed on direct appeal in December
2009. After unsuccessfully filing various pro se motions in the state court, Petitioner filed
this federal habeas petition in November 2011.
The district court concluded that Petitioner’s federal petition was filed outside the
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
one-year statute of limitations even if the court tolled the times in which Petitioner’s state
post-conviction motions were pending. The court also concluded that Petitioner was not
entitled to equitable tolling of the statute of limitations. The court therefore dismissed the
petition as untimely.
In his request for a certificate of appealability, Petitioner argues his petition should
be considered timely because (1) his appellate attorney was ineffective and (2) the
conviction could not be considered final under 28 U.S.C. § 2244(d)(1)(a) until after the
conclusion of the state post-conviction proceedings, since ineffective assistance claims
can only be brought in collateral proceedings. Neither argument is persuasive. The
district court carefully explained why appellate counsel’s alleged ineffectiveness did not
entitle Petitioner to statutory or equitable tolling of the statute of limitations, and we see
no error in its analysis. As for Petitioner’s second argument, a judgment becomes final
for limitations purposes “by the conclusion of direct review or the expiration of the time
for seeking such review,” 28 U.S.C. § 2244(d)(1)(A), not after all possible claims can be
brought and considered in state court proceedings. Contrary to Petitioner’s contentions,
“direct review” refers only to the direct criminal appeal and Supreme Court review
thereof, not to post-conviction and other collateral proceedings. See Redd v. McGrath,
343 F.3d 1077, 1081 (9th Cir. 2003).
After carefully reviewing the record and Petitioner’s filings on appeal, we
conclude that reasonable jurists would not debate the district court’s dismissal of the
habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Therefore, for substantially the same reasons given by the district court, we DENY
Petitioner’s request for a certificate of appealability and DISMISS the appeal.
Petitioner’s motion to proceed in forma pauperis on appeal is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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