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Jurisdiction: Court of Appeals for the Tenth Circuit
Decision Date: 7/21/2015



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Micco v. Falk Micco v. Falk (10th Cir., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DOUGLAS LLOYD MICCO, Petitioner - Appellant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FRANCIS FALK; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 15-1029

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES COURT OF APPEALS TENTH CIRCUIT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 21, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DOUGLAS LLOYD MICCO, Petitioner - Appellant, v. FRANCIS FALK; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 15-1029

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES COURT OF APPEALS TENTH CIRCUIT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 21, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (D. C. No. 1: 14-CV-02367-LTB)(D. Colorado)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER DENYING CERTIFICATE OF APPEALABILITY

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Before MATHESON MURPHY and PHILLIPS Circuit Judges.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Petitioner, Douglas L. Micco, a Colorado state prisoner proceeding pro se seeks a certificate of appealability ("COA") so he can appeal the district court's dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order disposing of a § 2254 petition unless the petitioner first obtains a COA). Micco's request to proceed before this court in forma pauperis is granted.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Micco's state conviction for sexual assault became final on July 14, 2008. At the time he filed his federal habeas petition on August 26, 2014, the one-year

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        limitations period set out in the Antiterrorism and Effective Death Penalty Act ("AEDPA") had already expired. See 28 U.S.C. § 2244(d) (setting forth a statute of limitations for § 2254 petitions). Respondents moved to dismiss the petition as time barred.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The district court concluded that Micco's § 2254 petition was filed outside the one-year limitations period established by the AEDPA. Because the one-year limitations period expired before Micco filed his state post-conviction petition, he was not eligible for statutory tolling. See Fisher v. Gibson 262 F. 3d 1135 1142-43 (10th Cir. 2001). The court also concluded Micco failed to identify any circumstances that would support equitable tolling of the limitations period. See Miller v. Marr 141 F. 3d 976 978 (10th Cir. 1998). Accordingly, the court dismissed the § 2254 petition as untimely.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To be entitled to a COA, Micco must show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. " Slack v. McDaniel 529 U.S. 473 484-85 (2000) (holding that when a district court dismisses a habeas petition on procedural grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and debatable whether the district court's procedural ruling was correct). This court reviews the district court's decision on equitable tolling of the limitations period for abuse of discretion. Burger v. Scott 317 F. 3d 1133 1138 (10th Cir. 2003).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After reviewing Micco's appellate brief and application for COA, the district court's order, and the entire record on appeal pursuant to the framework set out by the Supreme Court, we conclude Micco is not entitled to a COA. The district court did not miscalculate the one-year period and the record provides full support for the court's conclusion that Micco failed to demonstrate entitlement to equitable tolling. Because the district court's resolution of Micco's § 2254 petition as untimely is not deserving of further proceedings or subject to a different resolution on appeal, Micco has not "made a substantial showing of the denial of a constitutional right" and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This court denies Micco's request for a COA and dismisses this appeal. All outstanding motions are denied.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ENTERED FOR THE COURT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Michael R. Murphy        Circuit Judge

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