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

### February 7, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERIC MARSHALL, Petitioner-Appellant,

v. GARY GOLDER, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 05-1431 (D.C. No. 05-Z-953)

(D. Colo.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before KELLY , McKAY , and LUCERO , Circuit Judges.
Eric Marshall, a state prisoner proceeding pro se , requests a certificate of appealability (“COA”) to appeal the denial of his 2 8 U.S.C. § 2254 petition. For substantially the same reasons set forth by the dis trict court, we DENY Marshall’s request for a COA and DISMISS

. Marshall successfully appealed his twelve-year sent ence for manslaughter in the heat of passion by arguing that the trial co urt violated Colorado statutes by enhancing his sentence mandatorily. On remand, the trial court once again imposed a sentence beyond the presumptive range – this time in the exercise of its discretion – and re-sentenced Marshall to twelve ye ars’ imprisonment. Marshall1 Marshall’s petition was filed after April 24, 1996 , the effective date of the

Antiterrorism and Effective Death Penalty Act (“AED PA”); as a result, AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires Marshall to s how “that reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Because the distr ict court denied Marshall a COA, he may not appeal the district court’s decisio n absent a grant of COA by this court. 2 did not appeal this sentence, which became final on October 10, 1997, when the time for seeking direct review expired. See Colo. App. R. 4(b). It was not until May 26, 2005, that Marshall filed his § 2254 petition in the court below. In his petition, Marshall argued thatthe trial court was required by Colorado law to resentence him within the presumpti ve range and lacked the discretion to sentence him beyond the range. Findi ng that Marshall filed his § 2254 petition outside the applicable one-year lim itation period, the district court dismissed the action and subsequently denied Marsha ll’s request for a COA. Marshall now seeks a COA from this court. 1 Federal law provides that a “1-year period of limit ation shall apply to an application for a writ of habeas corpus by a personin custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) . This limitation period begins on “the date on which the judgment became fi nal by . . . the expiration of3

time for seeking [direct] review.” Because Marshal l’s sentence became final on October 10, 1997, he had until October 10, 1998 to file a petition for habeas relief in federal court. His petition, therefore, is time -barred. Liberally construing his brief, however, Marshall argues that we should equitably toll the limitations period because his t rial counsel failed to file an appeal after he was resentenced. The one-year limi tation period may be equitably tolled only “when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordin ary circumstances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000). We agree w ith the district court that Marshall’s allegedly recentdiscovery that his trial counsel failed to file a direct appeal does not demonstrate that Marshall diligently pursued his claims or that he was precluded by extraordinary circumstances beyond his control from filing a § 2254 petition in a timely m anner. The district court correctly ruled that Marshall fi led his § 2254 petition outside the limitations period and has presented no argument warranting equitable tolling. Marshall’s application for a COA is DENIED and the appeal is
DISMISSED . We GRANT Marshall’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge