We construe Mr. Brenner’s motion for appointment of counsel filed in 1

the district court as the functional equivalent of a notice of appeal as only one

substantive order had been entered by the district court and that is the obvious

subject of the appeal. See Fed. R. App. P. 3(b)(4); Smith v. Barry, 502 U.S. 244,

F I LED

United States Court of Appeals

Tenth Circuit

July 25, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK L. BRENNER,

Petitioner - Appellant,

v.

HOYT BRILL; ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents - Appellees.

No. 06-1111

(D.C. No. 06-Z-49)

(D. Colo.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Patrick L. Brenner, a state inmate proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal from the district courts denial of his petition for

a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court

dismissed the habeas action as time barred under the one-year limitation period

under 28 U.S.C. § 2244(d); and also dismissed one of the claims because it did

not implicate a federal constitutional right.1
248-49 (1992).

 Mr. Brenner asserts that he did file a direct appeal, R. Doc. 2 at 3, 2

however, we agree with the district court that such a filing appears to be a postconviction motion. Id. Doc. 4 at 1-2. 

 Because the record is insufficient to determine precisely when Mr. 3

Brenner filed each of these motions, we will take the dates as provided by him in

his habeas application and response to the district court’s order to show cause. 

- 2 -

To obtain a COA, Mr. Brenner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (internal quotation omitted). Where a district court

dismisses a habeas petition on procedural grounds, “a COA should issue when the

prisoner shows, at least, 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 was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In December 1991, following a plea of guilty to two counts of sexual

assault on a child by one in a position of trust, a Colorado state district court

sentenced Mr. Brenner to an indeterminate term of one day to life in prison. Mr.

Brenner did not file a direct appeal. Mr. Brenner filed several post-conviction 2

motions in the state district court. He filed his first one on November 30, 1998, 3

which the district court denied on March 4, 1999, and the state court of appeals

affirmed that denial on February 12, 2001. He filed a second motion on

November 5, 1999, which the state district court denied on December 2, 1999, and
- 3 -

the state court of appeals affirmed that denial on April 10, 2000. Mr. Brenner

filed a third motion on November 18, 2002, which the district court denied on

January 23, 2004, and the state court of appeals affirmed that denial on June 23,

2005. The state supreme court denied a petition for writ of certiorari on October

24, 2005. 

In his federal habeas petition, Mr. Brenner contends that (1) the state trial

court lacked subject matter jurisdiction because the prosecutor had not taken and

filed an oath of office, and (2) he was denied counsel in the trial court in

connection with his third post-conviction motion. Though the district court is

unassailably correct that the lack of post-conviction counsel does not implicate a

federal constitutional right, see Pennsylvania v. Finley, 481 U.S. 551, 556-57

(1987) (no right to post-conviction counsel), we deny a COA on the basis that the

action is time-barred.

Mr. Brenner had until April 24, 1997, to file his federal habeas petition

given his 1991 convictions and the enactment of the one-year limitation period. 

United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003). His petition was

filed December 30, 2005, and is plainly untimely. State post-conviction motions

do not toll when the limitation period has expired. Fisher v. Gibson, 262 F.3d

1135, 1142-43 (10th Cir. 2001). Although the limitation period may be tolled by

extraordinary circumstances, the lack of counsel is not one them. Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). 
- 4 -

We DENY Mr. Brenner’s application for a COA, DENY IFP and DISMISS

the appeal. Mr. Brenner must pay the filing fee.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge