Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318 1

F.3d 1183, 1187 (10th Cir. 2003). Myers’ motion to proceed in forma pauperis on appeal

was granted by the district court. 

F I LED

United States Court of Appeals

Tenth Circuit

March 14, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

CALVIN SHANE MYERS,

Petitioner - Appellant,

v.

LOWELL H. CLARK,

Respondents - Appellees.

No. 06-4034

(D. Utah)

(D.Ct. No. 2:05-CV-367-TC)

____________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPLICATION

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Calvin Myers, a state prisoner proceeding pro se and in forma pauperis,

1

filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. The district court

dismissed the petition as untimely. Myers then requested a certificate of
-2-

appealability (COA). Because the district court did not rule on the request within

thirty days, we deem it denied. See 10th Cir. R. 22.1(C). Myers renews his

application for a COA with this Court. For the same reasons set forth by the

district court, we DENY a COA and dismiss his application.

Background

The State of Utah charged Myers with two counts of aggravated murder,

both capital offenses, alleging Myers had killed his girlfriend and her unborn

child. Myers entered an unconditional guilty plea to one count of aggravated

murder and the trial court dismissed the second count in accordance with a plea

agreement. On February 6, 1996, the trial court sentenced Myers to life

imprisonment with the possibility of parole. Myers did not file a direct appeal.

In July 2000, Myers filed a petition for post-conviction relief in Utah state

court. The petition was dismissed on the basis of state procedural bars and the

court’s finding Myers’ trial counsel was not ineffective. Myers appealed this

decision and the Utah Supreme Court affirmed the dismissal. Myers v. State of

Utah, 94 P.3d 211 (Utah 2004). Myers then filed a § 2254 petition on May 23,

2005, asserting, inter alia, his claims were not procedurally barred. The district

court dismissed the petition, concluding Myers’ claims were untimely under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
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Certificate of Appealability

A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Myers makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] 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). Insofar as the district court dismissed his habeas petition on

procedural grounds, Myers must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. We review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001). 

Because Myers’ conviction became final before the effective date of

AEDPA, April 1996, Myers was required to file his §2254 petition by April 1997,
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unless the limitation period was tolled. Gibson v. Klinger, 232 F.3d 799, 803

(10th Cir. 2000) (one-year statute of limitations does not begin to run until

AEDPA's effective date, April 24, 1996, for convictions becoming final before

that date). The district court found Myers filed his § 2254 petition more than one

year after the effective date of AEDPA and there was no justification for

equitable tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). 

Myers argues he filed within one year of the Utah court’s resolution of his

state post-conviction claims and, therefore, his petition was timely filed. While a

claim for state post-conviction relief will generally toll the limitations period, it

will not toll a limitation period which has already expired. Fisher, 262 F.3d at

1142-43. Myers filed his post-conviction claims in July 2000, after the 1997

AEDPA statute of limitations had already expired. 

 Myers also fails to present sufficient grounds for the application of

equitable tolling, a remedy applied only in “rare and exceptional circumstances.” 

Gibson, 232 F.3d at 808 (quotations omitted). Consequently, the district court’s

dismissal order is not reasonably debatable. Slack, 529 U.S. at 484. Myers has

failed to make a sufficient showing he is entitled to a COA. We DENY a COA

and dismiss the application.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge