                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          October 27, 2006
                                  T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 KEITH ALLEN M ILLER,

              Petitioner - A ppellant ,                     No. 06-6130

        v.                                                (W .D. Oklahoma )

 ERIC FRANKLIN ,                                     (D.C. No. CIV-06-101-W )

              Respondent - Appellee.




                                          ORDER


Before H E N R Y , B R ISC O E , and O ’B R IE N , Circuit Judges.


      Keith A llen M iller, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s order denying

his 28 U.S.C. § 2254 petition for habeas corpus as untimely filed. M r. M iller also

seeks to proceed in forma pauperis on appeal (“IFP”). In his § 2254 petition, M r.

M iller alleged nine contentions: (1) insufficiency of the evidence, (2) violation of

his due process rights when three witnesses essentially acted as jurors; (3) due

process violation when the state investigators “released the crime scene” before

M r. M iller w as appointed counsel, see Rec. doc. 1, at 12 (Complaint, filed Jan.

30, 2006); (4) due process violation through refusal to instruct regarding a lesser

included offense; (5) due process violation through the refusal to instruct
regarding excusable homicide; (6) due process violation through the exclusion of

rebuttal evidence of domestic violence against the deceased; (7-8) ineffective

assistance of trial and appellate counsel; and (9) due process violation resulting

from Oklahoma’s arbitrary and capricious post-conviction procedures. For

substantially the same reasons set forth by the magistrate judge in his

well-reasoned report and recommendation, we deny M r. M iller’s application for a

COA and dismiss this matter.

                                 I. BACKGROUND

      M r. M iller was convicted of first-degree murder and possession of a sawed-

off shotgun. H e received concurrent sentences of life imprisonment and two

years’ imprisonment, respectively. On January 9, 2004, the Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed his conviction. M r. M iller did not seek

certiorari review at the United States Supreme Court.

      On M arch 29, 2005, M r. M iller filed an application for state post-

conviction relief, which was stricken on June 1, 2005, for failure to comply with

the court’s rules regarding excess pages. M r. M iller filed a second application on

July 7, 2005, which was denied on October 25, 2005. M r. M iller appealed, and

the OCCA affirmed the denial on January 12, 2006. M r. M iller filed a petition

pursuant to § 2254 in the federal district court on January 30, 2006; there was no

certificate of mailing but the Declaration under the Penalty of Perjury was dated



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January 25, 2006. The magistrate judge recommended (1) dismissal of M r.

M iller’s first eight contentions as untimely and (2) rejection of his ninth

contention on the merits. The district court adopted the magistrate judge’s report

and recommendation and dismissed the petition. The district court then denied

M r. M iller a COA, and this request followed.

                                   II. DISCUSSION

      A COA can only issue “if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). W hen a district court

has dismissed a habeas petition on procedural grounds, a certificate w ill only

issue when “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000).

      Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court.” 28 U.S.C. § 2244(d)(1). M r. M iller’s conviction

became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on April 8, 2004, when



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the ninety-day period to file a certiorari petition in the United States Supreme

Court expired. Therefore, to be timely, M r. M iller had until April 9, 2005, unless

this period was tolled, to file his habeas petition. Id. § 2244(d)(2); United States

v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003) (“Because [petitioner] did not seek

Supreme Court review, the one-year period of limitations applicable to his § 2255

motion comm enced on the day after expiration of the time for petitioning for

certiorari.”).

       M r. M iller raises contentions (1) through (8) before this court, and also

challenges the district court’s conclusion that his petition was untimely. The

magistrate judge reasoned that because M r. M iller’s first post-conviction petition

was not properly filed, he was not entitled to tolling for this application. See

Burger v. Scott, 317 F.3d 1133, 1139 (10th Cir. 2003) (“[A]n application is

‘properly filed’ when its delivery and acceptance are in compliance with the

applicable laws and riles governing filings.”). “[S]tate procedural law must

govern when determining whether a state petition is ‘properly filed’ . . . .”

Adams v. LeM aster, 223 F.3d 1177, 1181 (10th Cir. 2000).

       The magistrate judge also concluded that M r. M iller was not entitled to

statutory tolling for his second post-conviction application – filed on July 7, 2005

– because it was not commenced until after the limitations period had already




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expired on April 9, 2005. 1 Rec. doc. 5, at 7 (M agistrate’s Recommendation and

Report, filed Feb. 3, 2006). The magistrate judge also concluded that, even if M r.

M iller’s first state post-conviction application had been properly filed, his § 2254

petition would have been due no later than January 17, 2006. Id. at 8, n.5.

Because the earliest date that the petition was filed was January 25, 2006, his

petition was at least seven days late. The magistrate judge also noted that M r.

M iller did not present any exceptional circumstances that might warrant equitable

tolling. Id. at 8-9.

      Based on our review of the record on appeal, the district court’s order, and

M r. M iller’s submissions to this court, we are not persuaded jurists of reason

would disagree with the district court’s disposition of M r. M iller’s § 2254

petition. In sum, reasonable jurists would agree with the district court that M r.

M iller’s case does not present “rare and exceptional circumstances” warranting

equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232 F.3d 799,

808 (10th C ir. 2000) (internal quotation marks omitted). Accordingly, we DEN Y

M r. M iller’s request for a CO A, DEN Y his motion to proceed IFP, and DISM ISS

the matter.

                                 Entered for the Court,




      1
        W e note that the magistrate judge determined the limitations period
expired on April 8, 2005, but that this miscalculation does not change the result.

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Robert H. Henry
Circuit Judge




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