UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DALE HENRY ATOR, Petitioner - Appellant,

v. GEORGE DUNBAR, Warden at Buena Vista; THE ATTORN EY 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 CERTIFIC ATE OF APPEALABILITY AND DISMISSING APPEAL

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

Dale Henry Ator, a Colorado st ate prisoner appearing pro se, 1 seeks a certificate of appealability (COA). He wants to appeal fro m 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 CourtI. BACKGROUND Ator pled guilty in 2 002 to sexual assault on a child and received an indeterminate sentence of six years to life in prison. He di d not file a direct appeal. On May 19, 2003,

he filed a motion for reconsideration. The st ate 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-convictio n motion in the Colorado cour ts. The trial court denied the motion, the Colorado Court of Appeals affirmed and the Colorado Supreme Court denied certiorari review. Ator filed a petition fo r 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 pos t-conviction motion in 2006 exceeded the oneyear period of limitations set forth under th e Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d). It also dete rmined Ator had failed “to allege any facts with respect to his claims that mi ght 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 wh ether the petition states a valid claim of the denial of a constitutional right and that juri sts of reason would find it debatable whetherthe 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 sh ould be allowed to proceed further.” Id. Ator argues his trial counsel “did not re present [him]” and that he “was never advised by anyone other than [him self] 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 applica tion. 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 tolli ng 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) (quota tions omitted). “Generally, equitable tolling requires a litigant to establish two elements: (1) that he has been pursuing hi s rights diligently, and (2) that some extraordinary circ umstance 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 identif ies nothing which indicates otherwise.establishing that equitabl e tolling should apply. Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). Ator alleges the ineffective assistance of counsel prevente d 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 be tween 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 extr aordinary circumstances preventing such pursuit. Because he has not shown how juri sts of reason would find it debatable whether his petition states a valid claim of the deni al of a constitutional right and whether the district court was correct in its procedur al ruling, Ator is not entitled to a COA. In order to proceed ifp on appeal , Ator “must show a fina ncial inability to pay the required fees and the existence of a reasoned, nonfri volous 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 ha s failed to make a nonfrivolous argument. Therefore, we deny hi s 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 re lieve appellant of the obligation to pay the appellate filing fee in full).We DENY Ator’s request for a C OA and motion to proceed ifp . His nascent appeal is DISMISSED

. Entered by the Court:

Terrence L. O’Brien United States Circuit Judge