UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK L. LUTHER,

Petitioner-Appellant,

v.

GARY GOLDER, Warden, Sterling Correctional Facility; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.

No. 04-1151

D.C. No. 03-Z-2471

(D. Colo.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.

Mark Luther, a Colorado state prisoner proceeding pro se, requests a certificate of appealability ("COA") to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition. We DENY a COA and DISMISS.

After Luther violated the conditions of his parole on a state manslaughter conviction by fleeing to Texas, the parole board revoked Luther's parole. Luther pled guilty to attempted escape and the trial court sentenced him to three years of incarceration plus a three-year period of mandatory parole. The trial court ordered that Luther was to serve this sentence consecutively to the underlying manslaughter sentence. Judgment was entered on July 3, 1997.

Although he did not directly appeal his conviction or sentence, Luther did seek collateral review in state court arguing that his combined period of parole for the manslaughter and escape charges could not exceed three years under an applicable Colorado statute. The Colorado Court of Appeals agreed with Luther's statutory interpretation, but the Colorado Supreme Court reversed.

On November 21, 2003, the district court received Luther's § 2254 petition, wherein he restated his Colorado statutory law argument and asserted, without arguing, that his sentence of consecutive periods of parole violates his due process and equal protection rights. Concluding that Luther failed to file his petition within the applicable one-year limitation period, and declining to equitably toll the statute, the district court denied his petition and dismissed the habeas action. His application for COA having been denied below, Luther now seeks a COA from this court.1

Pursuant to 28 U.S.C. § 2244(d), a state prisoner must file an application for a writ of habeas corpus within one year of the date on which "judgment became final by the conclusion of direct review or the expiration of the time for seeking such a review." Under Colorado rules, Luther had forty-five days after entry of judgment on July 3, 1997 to seek direct review of his conviction and sentence. Luther conceded below, through counsel, that his "conviction and sentence became final on August 17, 1997 and the one-year limitation period commenced on that date." Furthermore, he conceded that even when tolling the statute of limitations for the period during which his state post-conviction petitions were pending, "the application was not filed within the period of one year."

In his present application, Luther argues that by granting him post-
conviction relief and remanding to the trial court for correction of the mittimus, the Colorado Court of Appeals ordered Luther's "resentencing," and therefore "the issuance of this new sentence would be the triggering date." Luther also argues that his re-incarceration following the Colorado Supreme Court's reversal of the court of appeals' decision constitutes a "new fact" in support of his habeas petition that merits equitable tolling. Luther did not raise these issues below. To the contrary, he conceded before the district court that August 17, 1997 serves as the appropriate triggering date for the one-year limitations period, and never argued that the Colorado Supreme Court's decision constitutes a "new fact" justifying equitable tolling. Accordingly, Luther has waived these arguments. See In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (except in extraordinary circumstances, this court will not consider an issue that was not before the trial court).2

We GRANT Luther's motion to proceed in forma pauperis. We DENY a COA and DISMISS.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge