Williams vs. Smelser, No. 06-1126 (10th Cir. 2006)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 17, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICK Y LA VINE W ILLIAM S, Petitioner-Appellant, No. 06-1126 v. (D.C. No. 05-cv-2402-ZLW ) DICK SM ELSER, W arden of C.C.C.F.; and THE A TTORNEY G EN ER AL O F TH E STA TE O F C OLO RA D O , (D . Colo.) Respondents-Appellees. OR DER Before KELLY, M cKA Y, and LUCERO, Circuit Judges. This is a pro se 28 U.S.C. § 2254 prisoner appeal. The underlying petition for habeas corpus w as dismissed by the district court as untimely. Pursuant to provisions of the Antiterrorism and Effective Death Penalty Act of 1996, the district court denied a certificate of appealability. The trial court s thorough Order and Judgment of Dismissal, filed February 1, 2006, fully and correctly sets forth why it dismissed the petition. W e see no reason to repeat that effort. To obtain a certificate of appealability, Petitioner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). In order to meet this burden, Petitioner must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 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) (quotation omitted). W e have carefully reviewed Petitioner s brief, the district court s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Petitioner s filing raises an issue which meets our standard for the grant of a certificate of appealability. For substantially the reasons set forth by the district court, we DEN Y Petitioner s request for a certificate of appealability and DISM ISS the appeal. The petition to proceed in forma pauperis is GR ANTED . The M otion for Permission to File Amicus Curiae Brief is DENIED. Entered for the Court M onroe G. M cKay Circuit Judge -2-

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