Saleh v. Dunbar , 393 F. App'x 566 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 24, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHRISTOPHER R. SALEH,
Petitioner - Appellant, No. 10-1099
v. (D. Colorado)
GEORGE DUNBAR; THE (D.C. No. 1:09-CV-02070-ZLW)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
This is a pro se appeal from the denial of 28 U.S.C. § 2254 relief. The
petitioner was convicted in Colorado state court, following a jury trial, of second-
degree assault and was sentenced to thirty-two years’ imprisonment as a habitual
offender. The Colorado Court of Appeals reversed, People v. Saleh, 25 P.3d 1248(Colo. Ct. App. 2000), but the Colorado Supreme Court reversed the Court of
Appeals and reinstated the conviction, People v. Saleh, 45 P.3d 1272 (Colo.
*
This order is not binding precedent except under the doctrines of law of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.
2002). Petitioner did not seek review in the United States Supreme Court. A
subsequent state motion for post-judgment relief was filed on February 16, 2005,
and was denied on appeal on December 18, 2008.
In his § 2254 petition, the petitioner alleged that he was denied his right to
due process by the Colorado Supreme Court in his direct criminal appeal
proceedings, that the evidence was insufficient to support his conviction, that trial
counsel was ineffective, and that his Sixth Amendment rights were denied when
he was denied counsel at sentencing. The district court denied the petition
because it was untimely. The court concluded that the state post-conviction
proceedings did not toll the time to file the § 2254 petition.
The district court also denied the petitioner’s request for a certificate of
appealability and application to proceed in forma pauperis on appeal. The
petitioner now requests a certificate of appealability and permission to proceed ifp
from this court.
After reviewing the petitioner’s filings on appeal and the trial court’s
thorough and extensive order, we conclude that the petitioner has not shown that
reasonable jurists would debate whether the district court was correct in denying
the petition as untimely. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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We therefore DENY the application for a certificate of appealability and
DISMISS this appeal. The application to proceed ifp is also DENIED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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