UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERNEST BRIM, a/k/a Bernard Horne, Petitioner–Appellant,

v. ARISTEDES W. ZA VARAS, Colorado DOC Executive Director; JOHN SUTHERS, Attorney Ge neral of the State of Colorado, Respondents–Appellees. No. 09-1516 (D.C. No. 1:09- CV-00429-ZLW) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , McKAY , and LUCERO , Circuit Judges.

Ernest Brim a/k/a Bernard Horne, a Co lorado state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas petition. For substantially the same re asons set forth by the di strict court, we deny

a COA and dismiss.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 March 22, 2010

Elisabeth A. Shumaker Clerk of Court- 2 - I In March 1987, Brim was convicted of ag gravated robbery, theft, and conspiracy to commit aggravated ro bbery and theft in Colorado state court. He was sentenced as a habitual criminal to life imprisonment. Br im’s convictions were affirmed on direct appeal. On March 1, 1991, the Colorado Supreme Court denied certiorari. Brim did not

seek a writ of certiorari from the United States Supreme Court. In February 1994, Brim filed a motion in state cour t for post-conviction relief advancing eighty-five claims. Following a hearing, the court denied many of Brim’s

claims and set others for a subs equent hearing. Brim then filed numerous motions in the trial court, along with two petitions for writs of mandamu s in the Colorado Supreme Court. The mandamus petitions were denied in late 1997. Brim’s petition for rehearing was rejected by the Colorado Supr eme Court on January 6, 1998. Brim’s criminal docket sheet shows no activity over the next six years. On June 7, 2004, the court received a letter from Brim, which was characterized as a post-conviction motion to vacate an illegal sent ence. The trial court denied relief and the Colorado Court of Appeals affirmed. On December 17, 2007, the Colorado Supreme Court denied

certiorari. Brim filed a motion for a “Temporary Restraining Order In Writ of Habeas Corpus” in federal district c ourt on February 27, 2009. Afte r the district court informed him that his filing was deficient, Brim filed a § 2254 petiti on on May 15, 2009,- 3 - advancing seven claims. Brim’s petition was dismissed as time-barred, and the district

court denied him a COA.

II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. § 2253(c)(1). We may issue a COA “onl y if the applicant has made a substantial showing of the denial of a constitutional righ t.” § 2253(c)(2). This requires Brim to show “that reasonable jurists could debate wh ether (or, for that ma tter, agree that) the petition should have been resolv ed in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted).

Brim’s conviction became fi nal on May 30, 1991, when the time to file a petition

for writ of certiorari in the United St ates Supreme Court expired. See Sup. Ct. R. 13.1 (1990) (amended 1995). “Where a conviction became final before AEDPA took effect, . . . the limitations period for a federal hab eas petition starts on AEDPA’s effective date, April 24, 1996.” Preston v. Gibson , 234 F.3d 1118, 1120 (10th Cir. 2000). Accordingly, Brim had until April 24, 1997, to file his federal habeas petition absent tolling. See

United States v. Hurst , 322 F.3d 1256, 1261 n.4 (10th Cir. 2003). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward” AEDPA’s one-year limitations period. § 2244(d)(2); see- 4 - § 2254(d)(1). Even assuming that Brim ’s state post-convic tion motion was not abandoned—thus tolling the statute of limitat ions for the entire period from April 24, 1996, when the limitations period began, to December 17, 2007, when the Colorado Supreme Court denied certiorari 1 —Brim’s petition is untimely. He first filed in federal court on February 27, 2009, mo re than two months after the limitations period expired on December 17, 2008. See § 2254(d)(1). Brim argues that we should add ninety da ys to the tolled period to account for the time during which he could have, but did not, file a petition for writ of certiorari with the United States Supreme Court. He apparent ly confuses § 2244(d)(2), which tolls the “time during which a properly filed appli cation for State post-conviction or other collateral review with respect to th e pertinent judgment or claim is pe nding,” and § 2244(d)(1)(A), which sets the start of AE DPA’s limitation period on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” A lthough the time to file a cer tiorari petition in the United States Supreme Court is counted for the latte r, it has no relevance for the former. See

Rhine v. Boone , 182 F.3d 1153, 1155-56 (10th Cir. 1999).

Brim also asserts that he is entitled to equitable tolling, bu t provides no factual basis for such tolling. Accordingly, Brim has waived any claim to equitable tolling. See

1 Brim erroneously argues that his st ate post-conviction proceedings are still ongoing. The Colorado Supreme Court’s denial of certiorari ended those proceedings.- 5 - Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (“[Equitable tolling] is only available when an inmate dilig ently pursues his claims and de monstrates that the failure to timely file was caused by extraordinar y circumstances beyond his control.”).

III

We DENY a COA and DISMISS Brim’s appeal. Brim ’s motion for leave to proceed in forma puaperis is GRANTED . All other pending motions are DENIED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge