                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 16, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



MARCUS VERMONT BELL,

              Petitioner - Appellant,
                                                        No. 10-5051
       v.                                             (N.D. Oklahoma)
                                            (D.C. No. 4:09-CV-00575-CVE-PJC)
JUSTIN JONES,

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Petitioner, Marcus Vermont Bell, an Oklahoma state prisoner proceeding

pro se and in forma pauperis, seeks a certificate of appealability (“COA”) so he

can appeal the district court’s dismissal of the habeas corpus petition he filed

pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA).

      On May 12, 2004, Bell pleaded guilty in Oklahoma state court to second

degree burglary, possession of marijuana, and possession of paraphernalia. He

was sentenced on the same day to twenty years’ imprisonment on the burglary

charge and one year in the Tulsa County Jail on each of the remaining two
charges. Bell attempted to withdraw his guilty plea but his motion was denied.

His petition for writ of certiorari was denied by the Oklahoma Court of Criminal

Appeals (“OCCA”) on January 25, 2005. Bell’s first state application for post-

conviction relief, filed on May 16, 2008, was denied by the state trial court and

Bell did not appeal. On February 18, 2009, he filed a second post-conviction

application seeking a post-conviction appeal out of time. The trial court denied

the request and the OCCA dismissed the appeal.

      Bell filed his federal habeas corpus action on September 3, 2009. In the

§ 2254 petition he alleged his sentence for the burglary conviction was

improperly enhanced. Respondent moved to dismiss Bell’s habeas action as time-

barred, arguing it was filed after the expiration of the one-year limitations period

established by the AEDPA. See 28 U.S.C. § 2244(d) (setting forth a one-year

statute of limitations for § 2254 applications). The district court concluded Bell’s

convictions became final on April 25, 2005. The one-year statute of limitations

period was not statutorily tolled while Bell pursued state post-conviction relief

because he did not first seek that relief until May 16, 2008, more than one year

after his conviction became final. Fisher v. Gibson, 262 F.3d 1135, 1142-43

(10th Cir. 2001). The district court also concluded Bell failed to demonstrate that

he was entitled to equitable tolling. Accordingly, the court granted Respondent’s

motion and dismissed Bell’s habeas petition.




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      To be entitled to a COA, Bell must show “that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Slack

v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court

dismisses a habeas petition on procedural grounds, a petitioner is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether

he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct). This court reviews the district court’s

decision on equitable tolling of the limitations period for abuse of discretion.

Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).

      This court has reviewed Bell’s appellate brief and application for COA, the

district court’s order, and the entire record on appeal pursuant to the framework

set out by the Supreme Court in Miller-El and concludes Bell is not entitled to a

COA. In his appellate brief, Bell concedes that he failed to file his § 2254

application in a timely manner but incorrectly asserts “a violation of

constitutional rights can be brought forth at any time.” He makes no claim of

entitlement to equitable tolling. Thus, it is clear the district court did not abuse

its discretion when it refused to equitably toll the one-year limitations period.

      The district court’s resolution of Bell’s habeas application is not reasonably

subject to debate and his claims are not adequate to deserve further proceedings.

Accordingly, Bell has not “made a substantial showing of the denial of a




                                          -3-
constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This

court denies Bell’s request for a COA and dismisses this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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