                                                                           F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           MAR 14 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 SHEILA PELZ,

             Petitioner - Appellant,
                                                        No. 02-7099
 v.                                               (D.C. No. 01-CV-665-S)
                                                     (E.D. Oklahoma)
 VICKIE SHOECRAFT,

             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McKAY, Circuit Judge.



      After examining the brief 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       This order and judgment is not binding precedent, except under the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.
      This is a 28 U.S.C. § 2254 prisoner appeal. Ms. Pelz was convicted in state

court of murder in the second degree–felony murder and of two counts of

accessory after the fact. Ms. Pelz filed a notice of appeal and designation of the

record with the Oklahoma Court of Criminal Appeals but failed to file a petition

in error by the required deadline. Accordingly, Ms. Pelz’s convictions and

sentences became final and she effectively waived appellate review.

      Petitioner filed her § 2254 petition in the district court. Respondent filed a

motion to dismiss the petition as time barred. In her petition, Ms. Pelz claimed

that the limitations period should be equitably tolled because she missed filing

deadlines on state post-conviction proceedings due to ineffective assistance of

trial counsel. The district court found that Ms. Pelz had not demonstrated due

diligence in pursuing her federal habeas claims and dismissed her petition as time

barred. Finding no merit in any of Ms. Pelz’s arguments, the district court

declined to grant her 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


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deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted).

      We have carefully reviewed Ms. Pelz’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s brief raises an issue which meets our standards for the grant of a

certificate of appealability. The district court carefully detailed Ms. Pelz’s claims

and set forth a time line with the relevant dates for her equitable tolling argument.

We are not persuaded that the alleged ineffective assistance of Ms. Pelz’s trial

counsel explains why Ms. Pelz waited over three years to pursue her second

application for post-conviction relief. “Mere attorney negligence does not justify

equitable tolling.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); see also

Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000). A petitioner must also

proceed with diligence in pursuing her claim. See Miller v. Marr, 141 F.3d 976,

978 (10th Cir. 1998); Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001).

We agree with the district court that “petitioner has not demonstrated due

diligence in pursuing her federal habeas claims, and her circumstances do not

warrant equitable tolling.” April 25, 2002, Order at 5. For substantially the same

reasons as set forth by the district court, 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.” Slack, 529 U.S. at 484.


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      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. 1

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




      1
        We determine that we have jurisdiction to hear this appeal because no
separate judgment was filed by the district court as required by Fed. R. Civ. P. 58.
The time to appeal does not begin to run until a Rule 58 judgment is entered. See
United States v. Torres, 282 F.3d 1241 (10th Cir. 2002).

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