                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 10 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 HOMER GENE EARTHMAN,

          Petitioner - Appellant,
                                                  No. 04-6224 and 04-6225
 vs.                                              (D.C. No. 04-CV-556-M
                                                     and 04-CV-557-M)
 REGINALD HINES,                                        (W.D. Okla.)

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Homer Gene Earthman, a state inmate appearing pro

se, seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s orders dismissing his petitions for writs of habeas corpus as time-barred

under 28 U.S.C. § 2244(d)(1)(A). We deny a COA and dismiss the consolidated

appeal.

       By June 2000 Mr. Earthman had been convicted of two or more felonies.

Then, on June 9, 2000, an Oklahoma jury convicted Mr. Earthman of three counts

of forgery in the second degree, three counts of attempting to obtain money under

false pretenses, one count of obtaining money under false pretenses, and two
counts of concealing stolen property. Mr. Earthman was sentenced to 55 years for

each count, to be served consecutively, for a total of 495 years imprisonment.

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on

July 17, 2001. On October 22, 2002, Mr. Earthman filed an application for post-

conviction relief in state district court.

       On June 29, 2000 in a separate proceeding, an Oklahoma jury convicted

Mr. Earthman of five counts of obtaining money under false pretenses and one

count of attempting to obtain money under false pretenses. Mr. Earthman was

sentenced to 47 years for each count, to be served consecutively, for a total of 282

years imprisonment. The OCCA affirmed his conviction on July 26, 2001. On

October 22, 2002, Mr. Earthman filed an application for post-conviction relief in

state district court.

       Mr. Earthman initiated two separate petitions challenging the convictions in

each case no earlier than April 23, 2004. 1 The magistrate judges to whom the

cases were referred recommended that the district court dismiss the actions as

time-barred, determining that Mr. Earthman was not entitled to statutory or

equitable tolling of the one-year limitations period of 28 U.S.C. § 2244(d)(1).


       1
        The petition is deemed filed when Mr. Earthman gave it to prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988); Hoggro v.
Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998). We assume arguendo that Mr.
Earthman submitted the petition for mailing the same day that he verified it. See
United States v. Gray, 182 F.3d 762, 766 (10th Cir. 1999).

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Over Mr. Earthman’s objections, the district court adopted the magistrate judges’

reports and recommendations and dismissed both petitions. After appealing both

dismissals, Mr. Earthman’s motion to consolidate the appeals was granted. Fed.

R. App. P. 3.

      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a state prisoner generally has one year from the date his conviction

becomes final to file a petition for writ of habeas corpus in federal court. See 28

U.S.C. § 2244(d)(1). Mr. Earthman’s June 9, 2000 conviction became final on

October 17, 2001, ninety days after the OCCA affirmed his conviction. Locke v.

Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001). No statutory tolling occurred with

regard to the June 9, 2000 conviction because Mr. Earthman failed to file a post-

conviction action in the state district court until October 22, 2002, five days after

the expiration of the one-year limitation period. Thus, under § 2244(d)(1), Mr.

Earthman had until October 17, 2002 to file his federal habeas petition to

challenge the June 9, 2000 conviction. As noted above, Mr. Earthman initiated

both actions no earlier than April 23, 2004.

      Similarly, Mr. Earthman’s June 29, 2000 conviction would have become

final on October 26, 2001, ninety days after the OCCA affirmed his conviction.

However, Mr. Earthman filed an application for post-conviction relief on October

22, 2002, prior to the expiration of the limitations period on a habeas action. The


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state court denied relief on January 7, 2003, and Mr. Earthman filed a Petition in

Error with the OCCA. This petition was denied on May 6, 2003. Thus, since

AEDPA provides that “[t]he time during which a properly filed application for

State post-conviction or other collateral review . . . is pending shall not be

counted toward any period of limitation,” 28 U.S.C. § 2244(d)(2), the limitation

period was tolled from October 22, 2002 to May 6, 2003. As noted above, Mr.

Earthman initiated both actions no earlier than April 23, 2004. Consequently, in

the absence of equitable tolling, both of Mr. Earthman’s petitions are untimely.

      Where a district court denies a habeas petition on procedural grounds, a

COA should issue only if the prisoner can show 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 whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). We need not reach the former issue, however, because the

record establishes that petitioner’s habeas corpus claims are untimely. Thus, the

district court’s ruling was procedurally correct, and COA is not warranted.

      Mr. Earthman recognizes that his petitions have been untimely filed, and he

argues that the one-year limitation period should be equitably tolled. We have

held that equitable tolling is available only in “rare and exceptional

circumstances,” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation


                                          -4-
omitted), and that for equitable tolling to apply, an inmate must “diligently

pursue[] his claims and demonstrate[] that the failure to timely file was caused by

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

1217, 1220 (10th Cir. 2000). In discussing each of Mr. Earthman’s arguments

that the limitations period should be tolled, the magistrate judges held that

equitable tolling was not available. Specifically, the magistrate judges held that

Mr. Earthman failed to establish the existence of “extraordinary circumstances”

justifying the application of equitable tolling, and that in any case, Mr. Earthman

did not diligently pursue his claims. After carefully reviewing the magistrate

judges’ reports and recommendations, the district court’s orders of dismissal, and

the record on appeal, we are satisfied that the district court’s conclusions are not

reasonably debatable given the difficult legal standard applicable to equitable

tolling.

       Petitioner’s motion to proceed in forma pauperis is GRANTED, petitioner’s

motion for a certificate of appealability is DENIED, and this consolidated appeal

is

       DISMISSED.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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