Cooper vs. Jones, No. 07-6179 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit October 11, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court JAM ES K. COOPER, No. 07-6179 Petitioner - A ppellant, v. W .D. Okla. JUSTIN JONES, Director, (D.C. No. 06-CV -1415-HE) Respondent - Appellee. OR DER DENY ING CERTIFICATE O F APPEALABILITY A ND DISM ISSIN G A PPLIC ATIO N Before KELLY, M U RPH Y, and O BRIEN, Circuit Judges. James K. Cooper (Cooper) pled guilty to several drug and theft-related charged in M arch 2005. He was sentenced to four 10-year terms and a one-year term for his convictions. Cooper did not seek post-conviction relief in state court until M ay 18, 2006, which was denied as untimely. The state court s denial was subsequently affirmed by the O klahoma Court of Criminal Appeals. Cooper, appearing pro se, 1 then filed his Petition for a W rit of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 21, 2006, in the United States District Court for 1 Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). the W estern District of Oklahoma. The petition was dismissed due to untimely filing. Cooper s argument for equitable tolling was specifically discussed and rejected by the district judge. Cooper moved for leave to proceed in forma pauperis (ifp) on appeal and applied for a Certificate of Appealability (COA). The district court granted his ifp request, but denied a COA. Cooper renews his request for a COA application in this Court. See 28 U.S.C. § 2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1). A COA is a jurisdictional prerequisite to our review. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Cooper makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this show ing, he must establish reasonable jurists could debate whether . . . the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). In his application, Cooper argues the merits of his § 2254 petition, but does not address the reason it w as dismissed untimeliness. W e have carefully reviewed Cooper s arguments and agree with the district -2- court. His petition is barred by the time limitations set forth in 28 U.S. C. § 2244(d)(1) and is not subject to equitable tolling. W e D EN Y Cooper s application for a COA and DISM ISS the appeal. ENTERED FOR THE COURT Terrence L. O Brien Circuit Judge -3-
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