This order is not binding precedent, except under the doctrines of law of *

the case, res judicata, and collateral estoppel.

F I LED

United States Court of Appeals

Tenth Circuit

April 17, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 06-1360

v. (D. of Colo.)

WILLIAM DEAN DAVIS,

Defendant-Appellant.

(D.C. Nos. 06-CV-1147-LTB and 

03-CR-11-LTB)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

William Dean Davis, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Davis has failed to make

“a substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2). 

Background

On April 11, 2003, Mr. Davis pleaded guilty to possession of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
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and (b)(1)(viii) and to possession of a firearm during commission of drug

trafficking in violation of 18 U.S.C. § 924(c)(1)(A). His conviction became final

on July 9, 2003. His brother and co-defendant, Don Wayne Davis, did not plead

guilty, but instead challenged the admission of the evidence obtained in the

search. In March 2006, the United States District Court for the District of

Colorado found that the warrant authorizing law enforcement to search the

Davis’s home was invalid and excluded the evidence obtained in the search. As a

result, the government dropped the charges against Don. 

On June 15, 2006, not quite three years after his conviction became final,

Mr. Davis filed a petition under 28 U.S.C. § 2255 raising two claims. He

contended that law enforcement violated his constitutional right against

unreasonable searches and seizures and that he received ineffective assistance of

counsel. The district court dismissed his petition as untimely because it was not

filed within the AEDPA one-year statute of limitations. The court also held that

Mr. Davis was not entitled to equitable tolling.

Discussion

A habeas petitioner may appeal the denial of his § 2255 motion only if the

district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A

COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, a petitioner must demonstrate that “reasonable jurists could debate
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whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks

omitted). We find no room to debate here.

AEDPA requires a federal prisoner to file for federal habeas relief within

one year after his conviction becomes final or within one year after “the facts

supporting the claim or claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2255(4). Though the one-year statute of

limitations may be subject to equitable tolling, such relief “is only available when

an inmate diligently pursues his claims and demonstrates that the failure to timely

file was caused by extraordinary circumstances beyond his control.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

The facts supporting Mr. Davis’s claims of an unconstitutional search and

ineffective assistance of counsel could have been discovered through the exercise

of due diligence at any time after his conviction became final. Mr. Davis argues

that ignorance of the filing deadline prevented him from filing his petition earlier. 

However, “ignorance of the law, even for an incarcerated pro se petitioner,

generally does not excuse prompt filing.” Id. at 1220 (internal quotations

omitted). He also argues that because the court mailed him the requisite forms to

fill out his § 2255 petition, it effectively gave him permission to file such a

petition regardless of AEDPA constraints. He cites no authority to support this
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proposition. Merely providing a petitioner with court forms does not grant

permission for late filing of a habeas petition. Reasonable jurists would agree

that the AEDPA one-year filing deadline forecloses Mr. Davis’s habeas corpus

petition.

Conclusion

Accordingly, we DENY Mr. Davis’s request for a COA and DISMISS this

appeal. Appellant’s motion to proceed in forma pauperis is also DENIED.

Entered for the Court,

Michael W. McConnell

Circuit Judge