* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 20 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELMOTIES BURROW, Petitioner - Appellant, No. 98-1229
v. (D.C. No. 98-D-378) DONICE NEAL and ATTORNEY GENERAL OF THE STATE OF COLORADO, (D. Colo.)
Respondents - Appellees.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Petitioner-Appellant’s brief and th e appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. Petitioner is a Colorado state prisoner. He was co nvicted by a jury in state-2-

court on December 15, 1998, of first degree murder, first degree assault, first degree sexual assault, aggravated robbery, and thir d degree assault. He was sentenced to seventy (70) years’ imprisonment. His direct appeal was denied on August 23, 1990, and his post-conviction motion fil ed pursuant to Colorado Rule of Criminal Procedure 35(c) was denied as untimely on November 24, 1994. Proceeding pro se, Petitioner filed a 28 U.S.C. § 2254 petition for w rit of habeas corpus asserting a claim of ineffective assi stance of counsel. The district court denied the petition as barred by the one-yearlimitation period in 28 U.S.C. § 2244(d)(1), denied Petitioner’s accompanying moti on for appointment of counsel as moot, and dismissed the action. The dis trict court also denied Petitioner a certificate of appealability and denie d his motion for leave to proceed on appeal pursuant to 28 U.S.C. § 1915. Petitionernow requests this court to issue a certificate of appealability so that he may appeal the district court’s dismissal of his section 2254 habeas corpus petitio n. As part of his pro se brief, Petitioner also moves this court to allow him to pr oceed on appeal in forma pauperis

. We issue a certificate of appealability “only if th e applicant has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). In his application and brief for a c ertificate of appealability, Petitioner attempts to make a substantial showing o f the denial of two1 Petitioner has not alleged, and we see no evidence suggesting, that the

tolling provision in 28 U.S.C. § 2244(d)(2) or the provisions in subsections B, C, and D of 28 U.S.C. § 2244(d)(1) have any role whats oever in this case. -3- constitutional rights: ineffective assistance of c ounsel and a deficient “Curtis Advisement Hearing at trial on his constitutional r ight to testify.” Petitioner’s Opening Br. at 11-12. He does not dispute, however , the court’s determination that his petition filed under 28 U.S.C. § 2254 was time-barred by section 2244(d). After thoroughly reviewing the record and Petitione r’s brief, we can discern no error in the district court’s determination thatPetitioner’s habeas corpus petition was time-barred. Because Petitioner’s con viction became final well before April 24, 1996, he had until April 23, 1997, to file a petition pursuant to 28 U.S.C. § 2254. 1 See 28 U.S.C. § 2244(d)(1)(A); United States v. Simmon ds , 111 F.3d 737, 746 (10th Cir. 1997). Petitioner fil ed his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on Febru ary 6, 1998. Therefore, his habeas corpus petition was untimely and there is no justification for granting a certificate of appealability. Accordingly, we deny Petitioner’s application for acertificate of appealability and dismiss this appeal. We also deny Petitioner’s motion for leave

to proceed on appeal in forma pauperis

.-4-

DENIED and DISMISSED.

Entered for the Court
Monroe McKay Circuit Judge