UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN DEAN WALTON,

Petitioner – Appellant,

v.

JOE ORTIZ, D.O.C.; KEVIN MILYARD, SCF (Warden); MARK BROADDUS, SCF (Associate); ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents – Appellees.	No. 06-1275

(D.C. No. 06-CV-475-BNB)

(D. Colo.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Brian Dean Walton, a 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. For substantially the same reasons set forth by the district court, we DENY a COA and DISMISS.

Walton was convicted in Colorado state court of simple robbery, attempted aggravated robbery, conspiracy to commit aggravated robbery, theft by receiving, and five habitual criminal counts. He was sentenced to a term of life imprisonment for each offense, with all sentences to run concurrently. The Colorado Court of Appeals reversed his conviction for theft by receiving but otherwise affirmed his convictions and sentence. He filed a petition for certiorari with the Colorado Supreme Court, which was denied on August 15, 1994. On August 26, 1997, Walton filed a motion for post-conviction relief in state court arguing ineffective assistance of counsel. After conducting an evidentiary hearing on his claim, the state court denied relief. That decision was affirmed by the Colorado Court of Appeals. An equally divided Colorado Supreme Court affirmed. Approximately seven months later, Walton filed a second motion for post-conviction relief in state court, in which he argued that trial counsel had a conflict of interest. The state trial court denied his petition as successive, and the Colorado Court of Appeals affirmed. On August 1, 2005, the Colorado Supreme Court denied his petition for certiorari.

On March 8, 2006, Walton filed a petition for habeas relief in federal district court. He raised two claims in his petition. First, he argued that his trial counsel was ineffective for failing to hire an investigator or conduct adequate discovery. Second, he argued that trial counsel's pro bono representation created an inherent conflict of interest because counsel would be required to pay the fees and costs associated with Walton's defense. The district court ruled that his petition was time-barred, and denied his application for a COA. Having failed to secure a COA below, Walton now seeks a COA from this court.1

Walton's conviction became final for the purposes of AEDPA's statute of limitations on April 24, 1996, the date of AEDPA's enactment. 28 U.S.C. § 2244(d); see also United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Walton had one year from that date to file a habeas petition. § 2244(d). He did not file his petition until March 8, 2006, and thus it was untimely.

Walton requests that we toll the statute of limitations to permit his untimely filing. Equitable tolling is available "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Although Walton has engaged in prolonged state litigation, he has not shown that extraordinary circumstances prevented him from filing a timely petition. He was, in fact, able to file a motion in state court for post-conviction relief shortly after the federal deadline expired. Our review of the record reveals no change in his circumstances that prevented the filing of a federal petition.

Accordingly, Walton's application for a COA is DENIED and the appeal is DISMISSED. Walton's motion to proceed in forma pauperis is GRANTED.

ENTERED FOR THE COURT

Carlos F Lucero

Circuit Judge