Ator v. Dunbar, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

October 5, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DALE HENRY ATOR,

Petitioner - Appellant,
v.
No. 09-1158
(D. Ct. Colo.)
(D. Ct. No. 1:08-CV-02733-ZLW)
GEORGE DUNBAR, Warden at Buena

Vista; THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,
Respondent - Appellee,
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS,

APPLICATION FOR CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before HARTZ, EBEL, and OBRIEN, Circuit Judges.

Dale Henry Ator, a Colorado state prisoner appearing pro se,1 seeks a certificate of
appealability (COA). He wants to appeal from the district courts dismissal of his 28
U.S.C. 2254 petition for writ of habeas corpus and moves to proceed in forma pauperis
(ifp) on appeal. Because Ator has not made a substantial showing of the denial of a
constitutional right, see 28 U.S.C. 2253(c)(2), we deny a COA.
We liberally construe Ators pro se filings. See Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
I.
BACKGROUND
Ator pled guilty in 2002 to sexual assault on a child and received an indeterminate
sentence of six years to life in prison. He did not file a direct appeal. On May 19, 2003,
he filed a motion for reconsideration. The state trial court denied the motion on July 14,
2003. He did not appeal the denial of this motion. Well over two years later (February
2006), Ator filed a post-conviction motion in the Colorado courts. The trial court denied
the motion, the Colorado Court of Appeals affirmed and the Colorado Supreme Court
denied certiorari review. Ator filed a petition for writ of habeas corpus in federal district
court on December 16, 2008, and another (in the same case) on January 22, 2009. The
district court determined both were time barred because the time between his conviction
becoming final in 2003 and his state post-conviction motion in 2006 exceeded the oneyear period of limitations set forth under the Antiterrorism and Effective Death Penalty
Act (AEDPA). See 28 U.S.C. 2244(d). It also determined Ator had failed to allege
any facts with respect to his claims that might justify equitable tolling of the one-year
limitation period. (R. Vol. 1 at 283.) The district court denied his request for a COA
and his request for leave to proceed ifp on appeal.
II.
DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Because the district
court dismissed Ators petition on procedural grounds he must demonstrate both 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). Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be allowed to
proceed further. Id.
Ator argues his trial counsel did not represent [him] and that he was never
advised by anyone other than [himself] to appeal. (COA App. at 2.) He states he has
begged, pleaded, and asked for an Attorney to Defend [him] to no avail and that he has
exhausted all [his] energies on [his] appeals. (Id. at 2, 4.) He makes no other argument
regarding the timeliness of his habeas application. Rather, he requests we allow him to
be Paroled to Colorado Springs. (Id. at 4.) Since his petition is clearly time-barred,2 we
liberally construe Ators application for a COA as arguing the district court erred in
failing to apply equitable tolling.
We review a district courts decision to deny equitable tolling for an abuse of
discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling
applies only in rare and exceptional circumstances. Laurson v. Leyba, 507 F.3d 1230,
1232 (10th Cir. 2007) (quotations omitted). Generally, equitable tolling requires a
litigant to establish two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way. Yang v. Archuleta, 525 F.3d
925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of
The record shows two and one-half years passed with no action by Ator in the
state or federal courts. Ator identifies nothing which indicates otherwise.
establishing that equitable tolling should apply. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005).
Ator alleges the ineffective assistance of counsel prevented him from diligently
pursuing his rights in a timely manner. He also claims his repeated attempts to secure
counsel and to exhaust his appeals demonstrate this diligence. A review of the record
reveals otherwise. He offers no evidence or explanation to account for his activities in
the two and one-half years that elapsed between his conviction becoming final and the
filing of his state post-conviction motion. The record does not demonstrate a diligent
pursuit of the claimed improprieties or extraordinary circumstances preventing such
pursuit. Because he has not shown how jurists of reason would find it debatable whether
his petition states a valid claim of the denial of a constitutional right and whether the
district court was correct in its procedural ruling, Ator is not entitled to a COA.
In order to proceed ifp on appeal, Ator must show a financial inability to pay the
required fees and the existence of a reasoned, nonfrivolous argument on the law and facts
in support of the issues raised on appeal. DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991) (emphasis added). Ator has failed to make a nonfrivolous argument.
Therefore, we deny his request to proceed ifp. He is directed to remit the full amount of
the filing fee within twenty days. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir.
2001) (dismissal of an appeal does not relieve appellant of the obligation to pay the
appellate filing fee in full).
We DENY Ators request for a COA and motion to proceed ifp. His nascent
appeal is DISMISSED.
Entered by the Court:
Terrence L. OBrien
United States Circuit Judge

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

DALE HENRY ATOR,

GEORGE DUNBAR, Warden at Buena

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS,

Before HARTZ, EBEL, and OBRIEN, Circuit Judges.

We liberally construe Ators pro se filings. See Ledbetter v. City of Topeka,

A COA is a jurisdictional prerequisite to our review of a petition for a writ of

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