FILED

United States Court of Appeals

Tenth Circuit

July 21, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS LLOYD MICCO,

Petitioner - Appellant,

v.

FRANCIS FALK; THE ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents - Appellees.

No. 15-1029

(D.C. No. 1:14-CV-02367-LTB)

(D. Colorado)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. 

Petitioner, Douglas L. Micco, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) so he can appeal the district court’s

dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. See

28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order

disposing of a § 2254 petition unless the petitioner first obtains a COA). Micco’s

request to proceed before this court in forma pauperis is granted. 

Micco’s state conviction for sexual assault became final on July 14, 2008.

At the time he filed his federal habeas petition on August 26, 2014, the one-year
limitations period set out in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) had already expired. See 28 U.S.C. § 2244(d) (setting forth a statute

of limitations for § 2254 petitions). Respondents moved to dismiss the petition as

time barred. 

The district court concluded that Micco’s § 2254 petition was filed outside

the one-year limitations period established by the AEDPA. Because the one-year

limitations period expired before Micco filed his state post-conviction petition, he

was not eligible for statutory tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142-

43 (10th Cir. 2001). The court also concluded Micco failed to identify any

circumstances that would support equitable tolling of the limitations period. See

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Accordingly, the court

dismissed the § 2254 petition as untimely. 

To be entitled to a COA, Micco must show “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, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling of the limitations period for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). 

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After reviewing Micco’s appellate brief and application for COA, the

district court’s order, and the entire record on appeal pursuant to the framework

set out by the Supreme Court, we conclude Micco is not entitled to a COA. The

district court did not miscalculate the one-year period and the record provides full

support for the court’s conclusion that Micco failed to demonstrate entitlement to

equitable tolling. Because the district court’s resolution of Micco’s § 2254

petition as untimely is not deserving of further proceedings or subject to a

different resolution on appeal, Micco has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2). 

This court denies Micco’s request for a COA and dismisses this appeal. 

All outstanding motions are denied.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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