                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   March 13, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 PETER JAMES BRUSH,

               Petitioner - Appellant,                   No. 07-6295
          v.                                           (W.D. Oklahoma)
 HASKELL HIGGINS, Warden,                        (D.C. No. CIV-07-1196-HE)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Peter James Brush was convicted, following a jury trial, of driving under

the influence after a former conviction, possession of a controlled dangerous

substance after a former conviction, attempted escape from a lawful arrest, and


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
possession of drug paraphernalia, for which he was sentenced to five years’

imprisonment on the first count, fifteen years’ imprisonment on the second count,

thirty days on the third count, and one year on the fourth count, all to run

consecutively. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed

Brush’s convictions and sentences in August 2004, and Brush did not seek

certiorari in the United States Supreme Court.

      Brush filed a motion for post-conviction relief, which was denied in

September 2005. He thereafter filed a number of motions, including several

mandamus actions and further post-conviction applications, all of which were

denied on procedural or jurisdictional grounds.

      Proceeding pro se, Brush then filed this petition for federal habeas relief

pursuant to 28 U.S.C. § 2254. He alleged that his trial and appellate counsel

rendered ineffective assistance, that he is actually and factually innocent of the

possession of a controlled and dangerous substance conviction, and that he was

denied due process in connection with his state post-conviction proceedings.

      The district court referred the matter to a magistrate judge, who determined

that Brush’s habeas petition was untimely under the limitations period established

by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). After further

concluding that Brush could not establish any ground for statutory or equitable

tolling of the limitations period, the magistrate judge recommended dismissal of

the petition as untimely. The district court accepted the magistrate judge’s

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recommendations and dismissed Brush’s petition as untimely. The district court

also denied Brush’s request for a certificate of appealability (“COA”) to appeal

the dismissal of his habeas petition.

      We have carefully reviewed Brush’s submissions, as well as the record.

For substantially the reasons set forth in the magistrate judge’s Report and

Recommendation dated November 16, 2007, and the district court’s Order dated

December 5, 2007, we conclude that Brush has failed to make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c), and we deny

his request for a COA and dismiss this appeal. 1

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




      1
          We further deny Brush’s request to proceed in forma pauperis on appeal.

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