UNITED STATES COURT OF APPEALS TENTH CIRCUIT

DAVID ATENCIO,

Petitioner-Appellant,

v.

WILLIAM WILSON and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 99-1077 (D.C. No. 98-Z-2632) (D. Colo.)

ORDER AND JUDGMENT(*)

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner-Appellant David Atencio filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a written order filed February 4, 1999, the district court dismissed the application on the ground that it was barred by the one-year limitation period in 28 U.S.C. § 2244(d). The court also considered each of Petitioner's claims that the statute of limitations should be tolled and rejected them. The district court subsequently denied Petitioner leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3), concluding that the appeal was not taken in good faith and that Petitioner had not shown the existence of a reasoned, nonfrivolous argument in support of the issues raised on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). In addition, the court declined to issue him a certificate of appealability because he failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. 2253(c)(2). Petitioner has renewed his request to proceed on appeal in forma pauperis and his application for a certificate of appealability in this court.

Having reviewed Petitioner's applications, his brief, and the record, we agree with the district court that the petition is time-barred and that no equitable tolling principles apply to make the petition timely. We therefore DENY Petitioner leave to proceed on appeal in forma pauperis, DENY the application for a certificate of appealability, and DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

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*.This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.