* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 15 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD A. LOVATO, Petitioner - Appellant, vs. JOHN SUTHERS; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 02-1132 (D.C. No. 01-D-1394) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges. **
Petitioner-Appellant Ronald A. Lovato, an inmate ap pearing pro se, seeks a certificate of appealability (“COA”) allowing him t o appeal the district court’s judgment denying relief on his habeas application, 28 U.S.C. § 2254. The district court determined that the petition was barred by th e one-year limitation period in- 2 -

28 U.S.C. § 2244(d), or in the alternative that the claims contained in the petition had been procedurally defaulted. R. Doc. 25 at 5-9

. On July 10, 1987, Mr. Lovato was convicted in Color ado of vehicular homicide, vehicular eluding, and leaving the scene of an accident resulting in death or bodily injury. He was adjudicated as an h abitual criminal, and sentenced to life imprisonment on July 13, 1987. His convict ion was affirmed by the Colorado Court of Appeals, and the Colorado Supreme Court denied certiorari review on January 8, 1990. On January 12, 1996, th e state district court denied Mr. Lovato’s motion for proportionality review. InOctober 1997, counsel was appointed to assist Mr. Lovato in pursuing state po st-conviction relief. On October 19, 1998, a Colo. R. Crim. P. 35(c) motion was filed on Mr. Lovato’s behalf. The district court denied the motion as ti me-barred pursuant to Colo. Rev. Stat. § 16-5-402. The Colorado Court of Appeals af firmed the denial, and, on July 3, 2000, the Colorado Supreme Court denied certiorari review. This § 2254 application was filed in July 2001. A COA requires that an applicant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). Meeting this standard requires “a demonstration that . . . includes showi ng that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were ‘adequate to- 3 -

deserve encouragement to proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 n. 4 (1983)). We review the legal conclusions of a district court ina habeas proceeding de novo. Martin v. Kaiser , 907 F.2d 931, 933 (10th Cir. 1990). Pursuant to the Antiterrorism and Effective Death P enalty Act of 1996 (“AEDPA”), a state prisoner generally has one year from the date his conviction becomes final to file a petition for a writ of habe as corpus in federal court. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitat ion shall apply to an application for a writ of habeas corpus by a personin custody pursuant to the judgment of a State court.”). Because Mr. Lovato’s conviction became final before April 24, 1996--the effective date of AEDPA- -he had until April 23, 1997, to file his habeas petition. See Miller v. Marr , 141 F.3d 976, 977 (10th Cir. 1998). Although the AEDPA one-year limitation peri od is tolled during the time in which a “properly filed application for State po st-conviction or other collateral review with respect to the pertinent judgment or cl aim is pending,” 28 U.S.C. § 2244(d)(2), Mr. Lovato’s state post-conviction ac tions pursuant to his Colo. R. Crim. P. 35(c) motion filed October 19, 1998, canno t toll the period of limitation because the motion was filed well after the April 2 3, 1997 date on which his habeas application would have been considered timel y. The one-year statute of limitations may be equitabl y tolled, although only- 4 -

“when an inmate diligently pursues his claims and d emonstrates that the failure to timely file was caused by extraordinary circumstanc es beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denie d , 531 U.S. 1194 (2001). Mr. Lovato has the burden of demonstr ating that equitable tolling should apply. See Miller , 141 F.3d at 978. Mr. Lovato asserts two grounds for equitable tolling. First, the difficulty of the le gal issues involved, and second, advice by a public defender to not file any postconviction motions until a proportionality review (as sought in the proceeding s commenced October 27, 1998) was completed. Ignorance of the law generall y will not excuse timely filing, even for an incarcerated pro se prisoner. Marsh , 223 F.3d at 1220. There is no right to counsel in federal habeas proceeding s, so lack of an attorney will not excuse an untimely habeas application. Colemanv. Thompson , 501 U.S. 722, 756-57 (1991). As for attorney advice (the date of which is unclear), the terms of the Colorado district court’s order of January 12, 1996 make it quite clear that a proportionality review had been denied. We agree w ith the district court that Mr. Lovato has not demonstrated that extraordinary circ umstances beyond his control prevented him from filing his federal habeas applic ation in a timely manner. R.
Doc. 25 at 6.- 5 -

We DENY a COA and IFP and DISMISS the appeal. Entered for the Court Paul J. Kelly, Jr. Circuit Judge