UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LYNDAL D. RITTERBUSH, Petitioner - Appellant,

v. LARRY BENZON, Respondent - Appellee. No. 19-4074 (D.C. No. 2:17-CV-00913-RJS) (D. Utah)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY

________________ _________________ Before HOLMES , MURPHY , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on Lyndal D. Ritterbush = s pro se request for a certificate of appealability ( A COA @ ). Ritterbush seeks a COA so he can appeal the district

court = s dismissal, on timeliness grounds, of his 28 U.S.C. ' 2254 habeas petition. See 28 U.S.C. ' 2253(c)(1)(A) (pro viding no appeal m ay be taken from A a final order in a habeas corpus proceeding in which the d etention complained of arises o ut of process issued by a State court @ without first obtaining a COA); id. ' 2244(d)(1) (setting out a one-year statute of limitations on ' 2254 petitions, running from the date on which the conviction became final). Because Ritterbush has not A made a substantial showing of the denial of a constitutional right, @ id. ' 2253(c)(2), this court denies his request for a COA and dismisses this appeal. FILED United States Court of Appeals Tenth Circuit 

### July 16, 2019 Elisabeth A. Shumaker Clerk of Court2 In 1984, Ritterbush pleaded guilty in Utah state court to attem pted aggravated sexual abuse of a child, a first degree felony. On November 23 , 1984, the trial court sentenced him to a term of impri sonment of from five years to l ife. Ritterbush filed the instant ' 2254 habeas petition in 201 7. Upon the state of Utah = s motion, the district court dismissed Ritterbush = s petition as untimely. In so doin g, the district court noted that because Ritterbush = s conviction became final befor e Congress passed the Antiterror ism and Effective Death Penalty Act of 1996, Ritterbush had to file his federal habeas petition within one year of April 24, 1996. See Gibson v. Klinger , 232 F.3d 799, 803, 808 (10th Cir. 2000). Instead, Ritterbush filed his ' 2254 petition some twent y-one years later. The district court further not ed Ritterbush was not entitled to statutory tolling because he did not file a state-court reque st for collateral relief within the relevant time period. See 28 U.S.C. ' 2244(d)(2); Fisher v. Gibson , 262 F.3d 1135, 1142- 43 (10th Cir. 2001). Finally, the district court dete rmined Ritterbush had not demon strated the kind of extraordinary circumstances that would come close to equitably tolling the extreme twenty-year delay in the f iling of his habeas petition. See Al-Yousif v. Trani , 779 F.3d 1173, 1179 (10th Cir. 2015) (holding that A [e]quitable tolling is a rare remedy to be applied in unusual circumstances @ (quotation omitted)). The granting of a COA is a juri sdictional prerequisite to Ritte rbush = s appeal from the dismissal of his ' 2254 petition. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). To be entitled to a COA, he must make A a substantial showing of the denial of a constitutional right. @ 28 U.S.C. ' 2253(c)(2). To make the requisite showing, he must demonstrate A reasonable jurists could deba te whether (or, for that matter, a gree that) the3 petition should have b een resolved in a different manner or tha t the issues presented were adequate to deserve encour agement to pro ceed further. @ Miller-El , 537 U.S. at 336 (quotations omitted). When a d istrict court dismisses a ' 2254 motion on procedural grounds, a petitioner is entitled to a COA only if he shows bot h that reasonable jurists would find it debatabl e whether he had stated a valid constitut ional claim and debatable whether the district court = s procedural ruling was correct. Slack v. McDaniel , 529 U.S. 473, 484-85 (2000). In evaluatin g whether Ritterbush has satis fied his burden, this court undertakes A a preliminary, though not defin itive, consideration of the [leg al] framework @ applicable to each of his claims. Miller-El , 537 U.S. at 338. Although Ritterbush need not demonstrate his appeal will succeed to be entitled to a COA , he must A prove something more than the absen ce of frivolity or the existence o f mere good faith. @ Id. (quotations omitted). As a furthe r overlay on this standard, w e review for abuse of discretion the district court = s decision that Ritterbush is n ot entitled to have the limitati ons period set out in ' 2244(d)(1) equitably tolled. See Burger v. Scott , 317 F.3d 1133, 1141 (10th Cir. 2003). Having undertaken a re view of Ritterbush = s appellate filings, the district court = s order of dismissal, and the entir e record before this court pur suant to the framework set out by the Supreme Court in Miller-El and Slack , we conclude Ritterbush is not entitled to a COA. The district court = s resolution of Ritterbush = s ' 2254 motion is not deserving of further proceedings or subject to a different resolution on appeal. In so concluding, there is no need for this court to repeat the cogent and convin cing analysis set out in the district court = s order. See Buck v. Davis , 137 S. Ct. 759, 773-74 ( 2017) (holding that the4 process of resolving whether a petitioner is entitled to a COA should not devolve into a determination of the merits ). Accordingly, this court DENIES Ritterbush = s request for a COA and DISMISSES this appeal.

ENTERED FOR THE COURT Michael R. Murphy Circuit Judge