Irvin TIMLEY, Petitioner-Appellant, v. Michael A. NELSON and Attorney General of Kansas, Respondents-Appellees, 36 F. App'x 387

ORDER AND JUDGMENT McKAY, Circuit Judge. After examining the briefs and the 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. This is a pro se § 2254 prisoner appeal. Mr. Timley was convicted of three counts of rape and four counts of aggravated criminal sodomy. His convictions were affirmed on direct appeal. Mr. Timley’s three state post-conviction actions and appeals were unsuccessful. In his § 2254 petition, Mr.

Timley raised ten claims of error. The magistrate judge recommended that the petition be denied as untimely under AEDPA. After consideration of Mr. Timley’s objections, the district court adopted the recommendation, finding no grounds for equitable tolling, and denied the petition. Finding no merit in any of Mr. Timley’s arguments, the district court declined to grant him a certificate of appealability. Petitioner then applied to this court for a certificate of appealability.

In order for this court to grant a certificate of appealability, Petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, 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. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). We have carefully reviewed Mr.

Tim-ley’s brief, the district court’s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Appellant’s brief raises an issue which meets our standards for the grant of a certificate of ap-pealability. For substantially the same reasons as set forth by the district court in its Order of December 20, 2001, adopting the magistrate judge’s report and recommendation, we cannot say that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.” Id.

We DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.