                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    November 28, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



 FRAN K V ASQ UEZ,

          Petitioner-A ppellant,

 v.                                                     No. 06-1142
                                                (D.C. No. 05-CV-2656-ZLW )
 GARY K. W ATKINS, W arden;                              (Colorado)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

          Respondents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.


      Frank Vasquez, a Colorado state prisoner appearing pro se, filed this

application for a certificate of appealability (COA) to challenge the district

court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. 1 See 28

U.S.C. § 2253(c)(1)(A) (prisoner must obtain a COA before appealing the



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
         Because he is proceeding pro se, we review M r. Vasquez’s pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
dismissal of a § 2254 petition). He also seeks leave to proceed in form a pauperis

(ifp) on appeal.

       W here the district court dismisses a petition on procedural grounds, the

inmate m ust show in his application for a COA “that it is reasonably debatable

whether (1) the petition states a valid claim of the denial of a constitutional right,

and (2) the district court’s procedural ruling is correct.” Dulworth v. Evans, 442

F.3d 1265, 1266 (10th Cir. 2006) (citing Slack v. M cDaniel, 529 U.S. 473, 483-84

(2000)). Because w e conclude the district court’s procedural ruling is correct, w e

deny M r. V asquez’s application for a COA.

       A one-year period of limitation applies to an application for a federal writ

of habeas corpus and runs from the later of “the date on which the judgment [of

conviction] became final by the conclusion of direct review or the expiration of

the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction does

not become final “until after the United States Supreme Court has denied review ,

or, if no petition for certiorari is filed, after the time for filing a petition for

certiorari with the Supreme Court has passed.” Rhine v. Boone, 182 F.3d 1153,

1155 (10th Cir. 1999).

       In the present case, the record reveals that M r. Vasquez’s conviction

became final on December 27, 1999. Hence, M r. Vasquez had until December 27,

2000 to file a habeas corpus petition in federal court, and his petition of

December 9, 2005 would therefore be untimely absent any tolling of the

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limitations period. But, M r. Vasquez filed a state motion for post-conviction

relief on August 24, 2000, thereby statutorily tolling AEDPA ’s one-year

limitation period. M ay v. Workman, 339 F.2d 1236, 1237 (10th Cir. 2003) (“The

one-year period of limitation for filing a federal habeas petition is tolled . . .

during the pendency of a state application for post-conviction relief.”) 28 U.S.C.

§ 2244(d)(2). The limitation period remained tolled until July 18, 2005, when the

Colorado Supreme Court denied M r. Vasquez’s request for a writ of certiorari.

      Despite this significant period during which the limitation period was

tolled, M r. Vasquez’s § 2254 petition was nonetheless untimely. Seven months

and 27 days passed between the date his conviction became final and the date he

filed his state motion for post-conviction relief. M oreover, four months and 20

days passed between the date the Colorado Supreme Court affirmed the denial of

his state motion for post-conviction relief and the date he filed his § 2254 petition

in federal court. Added together, these two periods total more than twelve

months permitted by statute.

      In his response to the district court’s order to show cause, M r. Vasquez

argued for equitable tolling of AEDPA ’s limitation period. Specifically, he

claimed (1) he was denied access to the cumulative annual pocket part to 28

U.S.C. § 2244 between M ay 11, 1998 and February 15, 2000, and thus did not

know he could seek review of his conviction by the United States Supreme Court,

and his appellate counsel did not so inform him; (2) he filed a § 2254 petition on

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December 14, 1999, which was dismissed without prejudice on February 11,

2000, and thus AEDPA ’s limitation period should have been tolled from

December 27, 1999, when his conviction became final, until February 11, 2000,

when his habeas petition was dismissed; (3) he believed his § 2254 was timely

because his state motion for post-conviction relief was timely; (4) his appellate

counsel told him he had until July 29, 2006, to file his federal habeas petition;

and (5) it would be a fundamental miscarriage of justice to dismiss his habeas

petition when he had diligently pursued and exhausted his claims in the state

courts. The district court considered and rejected all of M r. Vasquez’s arguments

for equitable tolling.

      In M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998), we stated that §

2244(d) is not jurisdictional but it is subject to equitable tolling. W e noted,

however, that “this equitable remedy is only available w hen an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” M arsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001).

             Equitable tolling would be appropriate, for example, when a
      prisoner is actually innocent, when an adversary’s conduct – or other
      uncontrollable circumstances – prevents a prisoner from timely
      filing, or when a prisoner actively pursues judicial remedies but files
      a defective pleading during the statutory period. Simple excusable
      neglect is not sufficient. M oreover, a petitioner must diligently
      pursue his federal habeas claims; a claim of insufficient access to
      relevant law . . . is not enough to support equitable tolling.



                                          -4-
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal citations omitted).

      Upon reviewing the record in this case, we conclude M r. Vasquez has

failed to show the district court erred when it determined that the one-year

limitation period was not subject to equitable tolling. M ost of M r. Vasquez’s

arguments center on ignorance of, or insufficient access to, relevant law. Such

arguments are insufficient to support equitable tolling. See id. M oreover, M r.

Vasquez’s assertion that the limitation period should be tolled for the period

during which his first § 2254 motion was pending is without merit. See Duncan

v. Walker, 533 U.S. 167, 181-82 (2001) (holding “an application for federal

habeas corpus review in not an ‘application for State post-conviction or other

collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2),” and “therefore

did not toll the limitation period during the pendency of respondent’s first federal

habeas petition.”). Finally, M r. Vasquez failed to show the existence of

“extraordinary circumstances beyond his control,” M arsh, 223 F.3d at 1220, that

might justify a finding of equitable tolling.

      W ith respect to M r. Vasquez’s motion for ifp status, he is required to show

the existence of “a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” M cIntosh v. U.S. Parole Comm'n, 115

F.3d 809, 812-13 (10th Cir. 1997) (internal quotation omitted). He has not done

so.




                                          -5-
      Accordingly, we D EN Y M r. Vasquez’s motion to proceed ifp, DENY his

application for a COA, and DISM ISS this appeal.

                                    ENTERED FOR THE COURT


                                    Stephanie K. Seymour
                                    Circuit Judge




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