Thames v. Chapman, 050212 FED10, 11-1533

Docket Nº:11-1533
Opinion Judge:Carlos F. Lucero Circuit Judge
Party Name:DOUGLAS THAMES, JR., Petitioner-Appellant, v. ARVIL CHAPMAN; JOHN SUTHERS, The Attorney General of The State of Colorado, Respondents-Appellees.
Judge Panel:Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
Case Date:May 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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DOUGLAS THAMES, JR., Petitioner-Appellant,

v.

ARVIL CHAPMAN; JOHN SUTHERS, The Attorney General of The State of Colorado, Respondents-Appellees.

No. 11-1533

United States Court of Appeals, Tenth Circuit

May 2, 2012

D.C. No. 1:11-CV-00436-LTB, D. Colo.

Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY [*]

Carlos F. Lucero Circuit Judge

Douglas Thames requests a certificate of appealability ("COA") to appeal the dismissal of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

I

Thames was convicted in Colorado state court of first-degree murder. The Colorado Court of Appeals subsequently affirmed his conviction on direct appeal, and the Colorado Supreme Court denied certiorari on May 17, 1999. On December 23, 1999, Thames filed a petition for state post-conviction relief. Following several supplemental post-conviction motions and the appointment of counsel, the state court denied relief. That ruling was affirmed on appeal. The Colorado Supreme Court denied certiorari for the post-conviction petition on January 19, 2010.

On February 22, 2011, Thames filed a motion seeking to extend the deadline for filing a § 2254 petition. He filed his actual § 2254 petition on March 31, 2011. In a pre-answer response, respondents Arvil Chapman and John Suthers argued that the petition was time-barred. Thames countered that his petition should be entitled to equitable tolling of the limitations period because he is actually innocent. After ordering additional briefing on the issue of actual innocence, the district court dismissed Thames' habeas petition as untimely.

II

Thames may not appeal the district court's denial of habeas relief under § 2254 without a COA. § 2253(c)(1). We will issue a COA only if Thames can show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

Section 2254 petitions generally must be filed within one year from the date a conviction becomes final. See § 2244(d)(1)(A). However, the "time during which a properly filed application for State post-conviction or other collateral review" does not count...

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