UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

DALE HENRY ATOR, 

Petitioner - Appellant, 

v. 

GEORGE DUNBAR, Warden at Buena 

Vista; THE ATTORNEY GENERAL OF 

THE STATE OF COLORADO, 

Respondent - Appellee, 

 

No. 09-1158 

(D. Ct. Colo.) 

(D. Ct. No. 1:08-CV-02733-ZLW) 

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS, 

APPLICATION FOR CERTIFICATE OF APPEALABILITY 

AND DISMISSING APPEAL 

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges. 

Dale Henry Ator, a Colorado state prisoner appearing pro se,1

 seeks a certificate of 

appealability (COA). He wants to appeal from the district court’s dismissal of his 28 

U.S.C. § 2254 petition for writ of habeas corpus and moves to proceed in forma pauperis 

(ifp) on appeal. Because Ator has not “made a substantial showing of the denial of a 

constitutional right,” see 28 U.S.C. § 2253(c)(2), we deny a COA. 

 

1

 We liberally construe Ator’s pro se filings. See Ledbetter v. City of Topeka, 

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 5, 2009

Elisabeth A. Shumaker 

Clerk of Court
I. BACKGROUND 

Ator pled guilty in 2002 to sexual assault on a child and received an indeterminate 

sentence of six years to life in prison. He did not file a direct appeal. On May 19, 2003, 

he filed a motion for reconsideration. The state trial court denied the motion on July 14, 

2003. He did not appeal the denial of this motion. Well over two years later (February 

2006), Ator filed a post-conviction motion in the Colorado courts. The trial court denied 

the motion, the Colorado Court of Appeals affirmed and the Colorado Supreme Court 

denied certiorari review. Ator filed a petition for writ of habeas corpus in federal district 

court on December 16, 2008, and another (in the same case) on January 22, 2009. The 

district court determined both were time barred because the time between his conviction 

becoming final in 2003 and his state post-conviction motion in 2006 exceeded the oneyear period of limitations set forth under the Antiterrorism and Effective Death Penalty 

Act (AEDPA). See 28 U.S.C. § 2244(d). It also determined Ator had failed “to allege 

any facts with respect to his claims that might justify equitable tolling of the one-year 

limitation period.” (R. Vol. 1 at 283.) The district court denied his request for a COA 

and his request for leave to proceed ifp on appeal. 

II. DISCUSSION 

A COA is a jurisdictional prerequisite to our review of a petition for a writ of 

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Because the district 

court dismissed Ator’s petition on procedural grounds he 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.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). “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. 

Ator argues his trial counsel “did not represent [him]” and that he “was never 

advised by anyone other than [himself] to appeal.” (COA App. at 2.) He states he has 

“begged, pleaded, and asked for an Attorney to Defend [him] to no avail” and that he has 

“exhausted all [his] energies on [his] appeals.” (Id. at 2, 4.) He makes no other argument 

regarding the timeliness of his habeas application. Rather, he requests we allow him “to 

be Paroled to Colorado Springs.” (Id. at 4.) Since his petition is clearly time-barred,2

 we 

liberally construe Ator’s application for a COA as arguing the district court erred in 

failing to apply equitable tolling. 

We review a district court’s decision to deny equitable tolling for an abuse of 

discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling 

applies only in “rare and exceptional circumstances.” Laurson v. Leyba, 507 F.3d 1230, 

1232 (10th Cir. 2007) (quotations omitted). “Generally, equitable tolling requires a 

litigant to establish two elements: (1) that he has been pursuing his rights diligently, and 

(2) that some extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 

925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of 

 

2

 The record shows two and one-half years passed with no action by Ator in the 

state or federal courts. Ator identifies nothing which indicates otherwise. 
establishing that equitable tolling should apply. Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005). 

Ator alleges the ineffective assistance of counsel prevented him from diligently 

pursuing his rights in a timely manner. He also claims his repeated attempts to secure 

counsel and to exhaust his appeals demonstrate this diligence. A review of the record 

reveals otherwise. He offers no evidence or explanation to account for his activities in 

the two and one-half years that elapsed between his conviction becoming final and the 

filing of his state post-conviction motion. The record does not demonstrate a diligent 

pursuit of the claimed improprieties or extraordinary circumstances preventing such 

pursuit. Because he has not shown how jurists of reason would find it debatable whether 

his petition states a valid claim of the denial of a constitutional right and whether the 

district court was correct in its procedural ruling, Ator is not entitled to a COA. 

In order to proceed ifp on appeal, Ator “must show a financial inability to pay the 

required fees and the existence of a reasoned, nonfrivolous argument on the law and facts 

in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 

(10th Cir. 1991) (emphasis added). Ator has failed to make a nonfrivolous argument. 

Therefore, we deny his request to proceed ifp. He is directed to remit the full amount of 

the filing fee within twenty days. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 

2001) (dismissal of an appeal does not relieve appellant of the obligation to pay the 

appellate filing fee in full). 
We DENY Ator’s request for a COA and motion to proceed ifp. His nascent 

appeal is DISMISSED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge