UNITED STATES COURT OF APPEALS TENTH CIRCUIT

ROBERT DIBARTOLOMEO, Petitioner - Appellant,

v. ROBERT O. LAMPERT, director, Wyoming Department of Corrections, Respondent - Appellee. No. 12-8054 (D.C. No. 2:11-CV-00380-CAB) (D. Wyo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before LUCERO , O’BRIEN, and MATHESON , Circuit Judges.
Robert DiBartolomeo, a Wyoming state prisoner proceeding pro se, 1 seeks a certificate of appealability (“C OA”) to challenge the district court’s denial of his 28

* This order is not bindi ng precedent, except under th e doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. DiBartolomeo is proceedi ng pro se, we construe his pleadings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal cons truction stops, however, at the point at which we begin to serve as his advocate.”). FILED United States Court of Appeals Tenth Circuit 

### November 14, 2012
Elisabeth A. Shumaker Clerk of Court-2- U.S.C. § 2254 petition for writ of habeas corpus. 2 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. DiBartolomeo’s application for a COA and dismiss this matter. On December 14, 2006, Mr. DiBartolomeo pled guilty to three counts of grand larceny in violation of Wyo. Stat. § 6-3-402(a), and one count of forgery in violation of Wyo. Stat. § 6-3-602(a). On February 8, 2007, he was sentenced to consecutive prison terms of five to seven years for each count . Mr. DiBartolomeo did not file a direct appeal. Between 2009 and 2011, Mr. DiBartol omeo sought post-conviction relief in various Wyoming state courts. All of his st ate habeas corpus petitio ns were denied, and the Wyoming Supreme Court denied his motion fo r writ of certiorari to review his habeas petition on March 8, 2011. On December 20, 2011, Mr. DiBartolomeo filed his § 2254 petition in the U.S. District Court for the District of Wyoming. The federal district court denied his petition as time-barred under the one-year statute of limitations applicable to federal habeas petitions. See 28 U.S.C. § 2244(d)(1). It conclude d that Mr. DiBartolomeo’s one-year period commenced on March 12, 2007, the last day he could have filed a direct appeal from his convictions and sentence to the W yoming Supreme Court. Thus, the last day that Mr. DiBartolomeo could have filed his § 2254 petiti on was March 12, 2008.

2 Although Mr. DiBartolomeo did not file a separate application for a COA, we deem his notice of appeal a renewed applicati on for a COA, pursuant to Fed. R. App. P. 22(b).-3- The district court recognized that, unde r § 2244(d)(2), the one-year limitations period could have been tolle d by Mr. DiBartolomeo’s state post-conviction proceedings. But it declined to apply tolling because Mr. Di Bartolomeo provided no evidence that he had filed a state post-conviction petition befo re March 12, 2008. Even assuming Mr. DiBartolomeo had met that deadline, the court explained, he still failed to file his § 2254 petition within one year of th e first denial of his state habeas corpus petition, which occurred April 21, 2009. The court also did not apply equitable tolling because Mr. DiBartolomeo did not request or argue for equitable tolling. Mr. DiBartolomeo now seeks a COA to cha llenge the district court’s dismissal of his § 2254 petition. A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 28 U. S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). To receive a COA, a petitioner must make “a substantial showin g of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, a district court denies a habeas petition on procedural grounds, a CO A will be issued only when the petitioner shows 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 wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 ( 2000) (emphasis added). The Antiterrorism and Effective Death Pe nalty Act (“AEDPA”) establishes a oneyear statute of limitations to bring habeas petitions under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). The limitations period typically begins runn ing on “the date on-4- which the judgment became final by the conclusi on of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). As the district court noted, Mr. DiBartol omeo was sentenced on February 8, 2007, and had until March 12 , 2007, to file a direct appeal. See Wyo. R. App. P. 2.01 (requiring the filing of a notice of appeal with in 30 days of the entry of an appealable order). Thus, Mr. DiBartolomeo’s one-year limitations period expired on March 12,
2008. Mr. DiBartolomeo has not met his burden of establishing that jurists of reason would find the correctness of the district court’ s procedural ruling debatable. He has not disputed the district court’s ruling that he fa iled to provide evidence that the filing of a state habeas petition tolled the limitations period. He also fails to dispute the district court’s determination that he did no t raise or argue equitable tolling. Because Mr. DiBartolomeo has failed to sh ow that jurists of reason would debate the district court’s ruling that his § 2254 petition is time-ba rred, we deny Mr. DiBartolomeo’s application for a COA and dism iss this matter. We also deny his request to proceed in forma pauperis.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge