UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY DALE FLOYD, Petitioner–Appellant,

v. PAM PLOUGHE, Warden; DIRECTOR COLO. DEPT. OF CORRECTIONS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents–Appellees. No. 12-1349 (D.C. No. 1:12- CV-01323-LTB) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Larry Dale Floyd, a Colorado state prisone r appearing pro se, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

I On November 30, 2006, Floyd pled guilty to three counts of enticement of a child

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 11, 2013

Elisabeth A. Shumaker Clerk of Court- 2

- in Colorado state court. On January 23 , 2007, the trial court sentenced Floyd to concurrent prison sentences of six years to lif e, pursuant to the plea agreement. Floyd did not appeal. On June 16, 2009, Floyd f iled a motion for sentence re consideration, which the trial court denied on July 1, 2009. He also filed a petition for rehe aring on July 29, 2009 that the trial court denied two days later. He did not appeal. On October 8, 2009, Floyd filed a motion to vacate his conviction, which the trial court denied the same day. Floyd appeal ed, and on September 16, 2010, the Colorado Court of Appeals affirmed the denial. The Colorado Supreme Court denied Floyd’s request for certiorari review on April 18, 2011. On May 21, 2012, Floyd filed a petition fo r habeas corpus relief under 28 U.S.C. § 2254 in federal district court. Floyd cl aimed that his guilty plea was not knowing, voluntary, or intelligent because the state trial court failed to adequately inform him that he was required to participate in sex offender treatment as pa rt of his plea agreement. The government argued that Floyd’s § 2254 petition was ba rred by the one-year limitations period found in § 2244(d). After providing Floyd an oppo rtunity to respond,

the district court dismissed Floyd’s petition as untimely.

II Floyd may not appeal the dist rict court’s denial of habeas relief without a COA. § 2253(c)(1)(A). We will grant a COA only if Floyd demonstrat es “that reasonable jurists could debate whether (or, for that ma tter, agree that) the pe tition should have been- 3

- resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). We constr ue Floyd’s pro se § 2254 pe tition liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

A

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a oneyear limitations peri od on habeas petitions, which generally begi ns to run upon “conclusion of direct review or the expiratio n of the time for seeking such review.” § 2244(d)(1). Floyd had forty-five days after entry of final judgment to file an appeal. See Colo. App. R. 4(b) (2007). He was se ntenced on January 23, 20 07, and therefore had until March 9, 2007 to appeal . See Colo. App. R. 26(a ) (2007) (providing that the computation of time shall incl ude weekends and legal holiday s when the time period to appeal is eleven or more days). Floyd’s AEDPA limitations period thus began to run on March 12, 2007, the next business day after the conclusion of his time to appeal. A properly filed application for stat e post-conviction relief tolls the AEDPA limitations period while the application is pend ing. § 2244(d)(2). There were no pending post-conviction applications in Floyd’s state court criminal case between March 12, 2007 and June 16, 2009, when Floyd filed his fi rst motion for sentence reconsideration. Accordingly, Floyd’s AEDPA limitations peri od ran uninterrupted for one year until it expired on March 12, 2008. Because Floyd did not file his § 22 54 petition until May 21, 2012, his petition is untimely.- 4

- B AEDPA’s one-year limitations period for habeas petitions is “subject to equitable tolling in appropriate cases.” See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). In general, “a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights d iligently, and (2) that some extraordinary circumstance stoo d in his way.” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Equitable tolling of the AE DPA limitations period is appropriate “only in rare and exceptional circumstances.” Id. at 1127. We agree with th e district court that Floyd has failed to show such circumstances here. Floyd’s sole argument for the application of equitable tolling is that the timeliness of his state court post-conviction motions re nders his federal habeas proceedings timely. The time that state courts provide for fili ng state post-conviction motions, however, does

not extend the time to file a federal habeas action under ADEPA. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003 ) (“We recognize that, as a fe deral statute that interacts with state procedural rules, § 2244(d) w ill sometimes force a state prisoner to act expeditiously to preserve his federal claims de spite the procedural lenience of state law, which may forgive substantial delay.”). We th erefore hold that Floyd has failed to assert any basis for equitable tolling.- 5

- III For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge