UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES K. IRONS,

Petitioner-Appellant,

v.

AL ESTEP, Warden, L.C.F.; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.	No. 05-1412

(D.C. No. 05-cv-1251-ZLW)

(Colorado)

ORDER AND JUDGMENT*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

James K. Irons, a state prisoner proceeding pro se, seeks a certificate of appealability (COA) to challenge the district court's dismissal of his 28 U.S.C. § 2254 petition as time barred. The district court denied Mr. Irons' request to proceed in forma pauperis (ifp). We review Mr. Irons' pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and exercise jurisdiction over this case pursuant to 28 U.S.C. §§ 1291 and 2253(c). In so doing, we conclude jurists of reason would not find debatable the district court's rejection of Mr. Irons' petition for relief, nor its conclusion that he has not shown the existence of a reasoned non-frivolous argument. We therefore deny Mr. Iron's application for a COA as well as his request to proceed ifp.

Mr. Irons was convicted in 2003 in Colorado state court of various drug crimes. He was sentenced to eight years in prison and three years of mandatory parole. He did not file a direct appeal. In April 2005, he sought state post conviction relief by filing a motion under Rule 35(c) of the Colorado Rules of Criminal Procedure. While that motion was still pending, he filed the instant petition in federal court claiming his state sentence violated Blakely v. Washington, 542 U.S. 296 (2004), because he had received a sentence outside the presumptive sentencing range based on facts determined by a judge rather than by a jury.

The district court ordered Mr. Irons to show cause why his application should not be denied as time barred by the one-year limitation period applicable to his claims under 28 U.S.C. § 2244(d),1 based on its determination that Mr. Irons' sentence became final in 2003. Consequently, barring equitable tolling under Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), the one-year limitations period during which Mr. Irons could file his § 2254 petition expired in 2004.

In responding to the show cause order, Mr. Irons raised a number of arguments claiming grounds for both statutory tolling under § 2244(d) and equitable tolling. He first asserted the one-year limitation period did not begin to run in 2003 when his conviction became final because his state appointed attorney was ineffective and therefore represented a state-created impediment under § 2244(d)(1)(B). He also contended he did not become aware of the factual predicate of his claim under § 2244(d)(1)(D) until he learned in the fall of 2004 that the Colorado courts were applying the rulings of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely to Colorado sentences. Therefore, Mr. Irons asserted, the tolling period for his claims had either not expired, or he should be granted equitable tolling to challenge his state sentence.

The district court rejected Mr. Irons' arguments. Citing to Polk County v. Dodson, 454 U.S. 312 (1981), the court noted that ineffective assistance of counsel cannot constitute a state-created impediment under § 2244(d)(1)(B) because defense attorneys are not state actors when "performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Id. at 325. Nor did Mr. Irons demonstrate how the actions of his attorney prevented him from filing his § 2254 petition in a timely manner.

The district court also rejected Mr. Irons' argument that he did not discover the factual predicates for his claim until the fall of 2004. The court noted that Mr. Irons was aware at the time of his sentencing in 2003 that he was sentenced outside of the presumptive range of two to six years. This was the factual predicate of his claim, not Mr. Irons' subsequent discovery of a legal argument that might further his petition for relief. Finally, the court determined Mr. Irons failed to demonstrate the existence of extraordinary circumstances beyond his control that prevented him from filing his § 2254 action in a timely manner so as to warrant an equitable tolling of § 2244(d). See Miller, 141 F.3d at 978. The court dismissed Mr. Irons' § 2254 petition as untimely.

We grant COA only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, 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). We have reviewed the district court's ruling, the record on appeal, and Mr. Irons' submissions to this court, and are not persuaded jurists of reason would find debatable the district court's dismissal of Mr. Irons' petition. In addition, we conclude he has not shown "the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (citation and quotation marks omitted).

Accordingly, we DENY Mr. Irons' petition for ifp status and his application for a COA, and we DISMISS the appeal.

SUBMITTED FOR THE COURT

Stephanie K. Seymour

Circuit Judge