                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 21 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 ADRIAN DARRYLE GIPSON,

          Petitioner-Appellant,

 v.                                                            No. 00-6305
                                                               (W.D. Okla.)
 JAMES L. SAFFLE, Director, Department of               (D.Ct. No. 99-CV-1870-M)
 Corrections of Oklahoma,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
       Appellant Adrian Darryle Gipson, a state inmate appearing pro se, appeals

the district court’s decision dismissing as untimely his federal habeas petition

filed pursuant to 28 U.S.C. § 2254. We deny Mr. Gipson’s request for a

certificate of appealability 1 and dismiss his appeal.



       Mr. Gipson received an eighty-year sentence following his state conviction

for first degree burglary after former conviction of two or more felonies. After

filing an unsuccessful direct state appeal and failing to file any action for state

post-conviction relief, Mr. Gipson filed his federal habeas petition pursuant to 28

U.S.C. § 2254. In his § 2254 petition, Mr. Gipson acknowledged his petition was

untimely filed, but asserted extraordinary circumstances beyond his control

existed which warranted the equitable tolling of the limitation period.

Specifically, Mr. Gipson claimed his appellate counsel failed to timely inform him

of the Oklahoma Court of Criminal Appeals decision issued October 10, 1997,

which affirmed his conviction and sentence. According to Mr. Gipson, his

attorney did not inform him of the decision until August 28, 1999.



       1
         Mr. Gipson filed a notice of appeal, in which he requested a certificate of
appealability. The district court did not issue a ruling on Mr. Gipson’s request. Under
our Emergency General Order of October 1, 1996, we deem the district court’s failure to
issue a certificate of appealability within thirty days after filing of the notice of appeal as
a denial of a certificate.


                                              -2-
      The district court referred the matter to a magistrate judge, who issued a

thorough and well-reasoned Report and Recommendation, which recommended

denying Mr. Gipson’s petition as untimely. The magistrate judge determined Mr.

Gipson’s conviction became final January 9, 1998, and the one-year limitation

period for filing his federal habeas petition under § 28 U.S.C. § 2244(d)(1)

expired January 9, 1999. Because Mr. Gipson filed no state post-conviction

action, the magistrate judge determined no statutory tolling of the limitation

period occurred, thereby making Mr. Gipson’s November 30, 1999 petition

untimely. The magistrate judge also concluded that, even if Mr. Gipson’s

attorney failed to timely notify him of the disposition of his direct appeal, no

extraordinary circumstance existed to warrant the equitable tolling of the one-year

limitation period because Mr. Gipson failed to 1) show he diligently pursued his

judicial remedies or 2) assert his innocence. Finally, after construing Mr.

Gipson’s petition liberally, the magistrate judge also considered and rejected Mr.

Gipson’s argument that the one-year limitation period should be equitably tolled

based on his unsupported claim of incompetency. After reviewing Mr. Gipson’s

objections to the Report and Recommendation, the district court adopted the

magistrate judge’s recommendation in its entirety and denied his petition as

untimely.




                                          -3-
      On appeal, Mr. Gipson raises the same argument rejected by the district

court, i.e., that equitable tolling of the limitation period is warranted because his

attorney failed to timely advise him of the disposition of his direct appeal. In

support, Mr. Gipson relies on two Fifth Circuit cases, Phillips v. Donnelly, 216

F.3d 508, 510-11 (5th Cir. 2000) and Fisher v. Johnson, 174 F.3d 710, 713-15

(5th Cir. 1999), petition for cert. filed, (U.S. Oct. 5, 2000) (No. 00-7464), which

he contends this court must follow in granting him a certificate of appealability.



      We review de novo the legal basis for the district court’s denial of Mr.

Gipson’s petition. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999),

cert. denied, 528 U.S. 1120 (2000). In applying this standard, and after careful

review of the entire record, we agree with the magistrate judge’s thorough and

well-reasoned assessment that Mr. Gipson untimely filed his § 2254 petition and

no tolling is warranted. Therefore, in the interests of judicial economy, we

decline to duplicate the same analysis here, other than to note the magistrate

judge properly applied the law of this circuit. As to Mr. Gipson’s reliance on two

Fifth Circuit cases to support his appeal, they represent non-binding, non-

precedential authority, which this Circuit is not required to follow. See Garcia by

Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987), cert. denied, 485 U.S. 959

(1988). Moreover, the Fifth Circuit’s reasoning in Fisher actually supports the


                                          -4-
denial of Mr. Gipson’s petition because no equitable tolling was warranted. See

Fisher, 174 F.3d at 714-15.



      In order for this court to grant Mr. Gipson a certificate of appealability and

proceed to the merits of his appeal, Mr. Gipson must make a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253. In this case, he fails to

make such a showing as it is clear jurists of reason would not find it debatable

whether the district court was correct in its procedural ruling. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000).



      Accordingly, for substantially the same reasons provided in the magistrate

judge’s February 29, 2000 Report and Recommendation, and the district court’s

August 22, 2000 Order, we deny Mr. Gipson’s request for a certificate of

appealability and DISMISS his appeal. We further deny Mr. Gipson’s request to

proceed in forma pauperis.


                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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