This order is not binding precedent, except under the doctrines of law of *

the case, res judicata, and collateral estoppel. 

We liberally construe Mr. Wager’s pro se application. See Cummings v. 1

Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).

The district court denied Mr. Wager’s request for a COA. 

2

F I LED

United States Court of Appeals

Tenth Circuit

November 28, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD WAGER,

Plaintiff-Appellant,

v.

KEVIN MILYARD; COLORADO

ATTORNEY GENERAL,

Defendants-Appellees.

No. 06-1265

(D.C. No. 06-Z-65)

(Colorado)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Donald Wager, a state prisoner appearing pro se, seeks a certificate of 1

appealability (COA) to challenge the district court’s denial of his petition for writ of

habeas corpus under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 2

2253(c)(1), we see no basis for appeal and deny Mr. Wager’s application for a COA. 

Mr. Wager pled guilty to second degree murder and first degree assault, and on
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August 25, 2000, he was sentenced to sixty-eight years in prison by a Colorado court. 

Nearly three years later, on July 23, 2003, Mr. Wager filed an unsuccessful 

postconvition motion in state trial court challenging the validity of his sentence. On

May 5, 2005, the Colorado Court of Appeals affirmed the trial court’s decision, and on

October 17, 2005, the Colorado Supreme Court denied certiorari review. Mr. Wager

filed this § 2254 petition in the district court in January 2006. The district court

ordered him to show cause why his habeas corpus petition should not be dismised as

time barred. After considering Mr. Wager’s response to the show cause order, the

court determined that the petition was barred by the one year time limitation period in

28 U.S.C. § 2244(d). 

Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). We may issue a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For those claims

dismissed on procedural grounds by the district court, we will issue a COA only when

“jurists of reason would find it debatable whether the petition state[d] 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.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). 

Mr. Wager asserts his case is not time barred because he is a “layman who

lacked the legal training and knowledge of the law” to discover his legal claim earlier. 

Aplt. Br. at 3. The habeas time bar, however, does not countenance unfamiliarity with

the law as a justification for untimely filing. See 28 U.S.C. 2244(d). Mr. Wager also

contends federal habeas relief should be accessible under principles of “federalism and
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comity” and the “due process and equal protection clauses” because Colorado provides

a longer, three-year window for seeking state postconviction relief. Aplt. Br. at 4. The

one-year statutory limitation on seeking habeas relief, however, has not been held to

conflict with these principles and Constitutional protections even where its availability

is shorter in duration than for comparable state remedies. It is not debatable that filing

within Colorado’s three-year window does not overcome the one-year procedural bar

limiting federal habeas relief.

Finally, a prisoner seeking ifp status must demonstrate financial inability to pay

and the existence of "a reasoned, nonfrivolous argument on the law and the facts in

support of the issues raised on appeal." McIntosh v. U.S. Parole Comm'n, 115 F.3d

809, 812-13 (10th Cir. 1997) (internal quotation marks omitted). Because Mr. Wager

has not made a showing of good faith and the absence of frivolity, we deny his motion

for leave to proceed ifp.

Because as Mr. Wager provides no debatable grounds for overcoming the oneyear time limit, we DENY his application for a COA and his request to proceed ifp.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge