                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                           July 18, 2007
                          FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 DA RREN C. BLUEM EL,
                                                         No. 06-4271
              Petitioner-A ppellant,

 v.                                                     District of Utah

 CLINT S. FRIEL, W arden and M ARK               (D.C. No. 2:04-CV-1082 TC)
 L. SHURTLEFF, Attorney General,

              Respondents-Appellees.



          OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before B RISC OE , M cKA Y , and M cCO NNELL, Circuit Judges.


      D arren B luemel, a state prisoner, seeks a certificate of appealability (COA )

that would allow him to appeal from the district court’s order denying his habeas

corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because

we conclude that M r. Bluemel filed his petition after the one-year statute of

limitations expired, we deny his request for a COA and dismiss the appeal. Id. §

2253(c)(2).

                                       Background

      On June 11, 1999, M r. Bluemel pleaded guilty in Utah state court to first-

degree murder. He was represented by court-appointed counsel. At sentencing
on August 30, 1999, he received the maximum sentence under state law at the

time: an indeterminate sentence of five years to life in prison. The record

indicates that, when M r. Bluemel pleaded guilty and was sentenced, he was taking

antidepressants due to a head injury he had suffered some five years earlier.

       Because M r. Bluemel did not appeal his conviction, it became final on

September 29, 1999, the deadline under state law for filing an appeal. On A ugust

25, 2000, M r. Bluemel— then proceeding pro se— filed his first petition for state

post-conviction relief. The state district court denied this petition on December

11, 2000. M r. Bluemel did not appeal that dismissal within the thirty-day

deadline, which expired on January 11, 2001. He filed a second state petition for

post-conviction relief on January 19, 2001, which the state court denied on M arch

2, 2001. M r. Bluemel again failed to appeal that decision within the thirty days

allotted for doing so, or before April 2, 2001.

       M r. Bluemel filed a third state petition for post-conviction relief on June 8,

2001. After this petition was denied, M r. Bluemel pursued it through the appeals

process, which ended on December 2, 2003, when the Utah Supreme Court denied

certiorari.

       M r. Bluemel filed this petition for federal habeas relief on November 23,

2004. The district court denied M r. Bluemel’s petition on procedural grounds,

holding that the petition was barred because it was filed outside of the one-year

statute of limitations period in 28 U.S.C. § 2244(d). The court rejected M r.

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Bluemel’s contention that the limitations period should be tolled on statutory and

equitable grounds. M r. Bluemel now requests a COA from this Court.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). W hen a court

denies a habeas petition on procedural grounds without reaching the underlying

constitutional claim, as the district court did in this case, “a CO A should issue

when the prisoner shows . . . that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable w hether the district court was correct in

its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). W e find the

district court’s procedural ruling correct and therefore dismiss the petition.

      The A nti-Terrorism and Effective D eath Penalty Act (“AEDPA”) imposes a

one-year statute of limitations on habeas petitions by state prisoners. 28 U.S.C. §

2244(d)(1). This limitation period is tolled while properly filed applications for

state post-conviction relief or other collateral review are pending. Id. §

2244(d)(2). AEDPA’s statute of limitations is also subject to equitable tolling in

cases w here extraordinary circumstances outside of the prisoner’s control lead to

delay in filing. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). M r.

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Bluemel argues that he qualifies for both statutory and equitable tolling. He is

mistaken.

      The district court properly found that the one-year limitations period had

expired long before M r. Bluemel filed this § 2254 petition. Three-hundred thirty-

one days of the 365-day allotment had already passed w hen M r. Bluemel first

sought post-conviction relief in state court on August 25, 2000. Thereafter, the

limitations period was tolled while M r. Bluemel’s first and second state petitions

for post-conviction relief were “pending”— i.e., after the petitions were filed and

before the time for appealing the resolved petitions expired. See 28 U.S.C. §

2244(d)(2); Carey v. Saffold, 536 U.S. 214, 220 (2002). The thirty-four days

remaining in his limitations period ticked away while no petition was pending and

expired no later than April 29, 2001. Thus, M r. Bluemel’s November 2004 §

2254 petition fell outside AEDPA ’s statute of limitations by at least three and a

half years. A nd the fact that M r. Bluemel filed a third state petition for post-

conviction relief on June 8, 2001, does not change our analysis. This third

petition was filed more than one month after the limitations period had expired,

so there was nothing left for the June 8 petition to toll.



      M r. Bluemel, however, argues that the limitations period is tolled to this

day because the state district court that heard his first petition for post-conviction

relief did not rule on a motion to amend, which he filed before the court


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dismissed his claim. But the limitations period is tolled only while “a state

prisoner is attempting, through proper use of state court procedures, to exhaust

state court remedies.” Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).

It is not proper use of court procedure for M r. Bluemel to neglect to appeal his

post-conviction petition and then challenge the state district court’s failure to rule

on an outstanding motion three and a half years later in a § 2254 proceeding.

Rather, M r. Bluemel should have attacked the state court’s failure to rule on his

motion in an appeal to the Utah courts. Under AEDPA , tolling stopped as soon as

the time for appealing the denied petition expired; at that moment, the petition

was no longer pending. See Carey 536 U.S. at 220; Barnett, 167 F.3d at 1323

(internal citations omitted). Thus, the judgment on M r. Bluemel’s first post-

conviction petition became final, not withstanding the outstanding motion to

amend, on January 11, 2001, the deadline to appeal.

      Finally, we turn to M r. Bluemel’s claim that the limitations period was

equitably tolled because (1) he was denied access to a law library, (2) the Utah

State Prison contract attorneys refused to help, (3) the contract attorneys provided

erroneous advice, (4) he was acting pro se, (5) he is mentally disabled, (6) the

state refused him access to his court file, and (7) state incarceration officials

confiscated his accumulated legal materials.

      One dispositive factor leads us to reject these claims. During the time for

which M r. Bluemel seeks equitable tolling, he filed three petitions for state post-



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conviction relief and a separate civil suit against the state of Utah challenging the

prison policy on access to attorneys and law libraries. Equitable tolling excuses a

late habeas petition only when a prisoner (1) “has been pursuing his rights

diligently, and (2) . . . some extraordinary circumstance stood in his way.” Pace

v. D iG uglielm o, 544 U.S. 408 (2005); see also M arsh, 223 F.3d at 1220. M r.

Bluemel’s litigation work while incarcerated shows that he was able to pursue

legal remedies despite the circumstances he claims prevented a timely § 2254

petition. See Gaston v Palmer, 417 F.3d 1030, 1034–35 (9th Cir. 2005) (rejecting

the petitioner’s argument for equitable tolling because he was able to file timely

state habeas petitions). In other words, M r. Bluemel’s own efforts show that

there was no “extraordinary circumstance” preventing him from timely filing a §

2254 petition.

                                     Conclusion

      Accordingly, we D EN Y M r. Bluemel’s request for a COA and DISM ISS

this appeal.

                                                     Entered for the Court,

                                                     M ichael W . M cConnell
                                                     Circuit Judge




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