                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 1, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



JERRY WAYNE DAMPF,

              Petitioner - Appellant,
                                                         No. 09-5177
       v.                                             (N.D. Oklahoma)
                                            (D.C. No. 4:09-CV-00283-CVE-TLW)
DAVID PARKER, Warden,

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Petitioner, Jerry Wayne Dampf, 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 July 26, 2001, Dampf pleaded guilty in Oklahoma state court to lewd

molestation, forcible sodomy, first degree rape, and rape by instrumentation. He

was sentenced on September 6, 2001. Dampf did not attempt to withdraw his

guilty plea or otherwise appeal his conviction. On July 16, 2002, however,
Dampf filed an Application for Judicial Review, seeking a modification of his

sentence. The state court granted Dampf’s application and significantly modified

his sentence on September 4, 2002. Dampf filed his first state application for

post-conviction relief on December 26, 2002, and his second application on May

19, 2008. Both were denied by the state district court and the denials were

affirmed by the Oklahoma Court of Criminal Appeals.

      Dampf filed his federal habeas corpus action on May 15, 2009. In the

§ 2254 petition he alleged (1) the trial court lacked jurisdiction over the state

criminal proceedings; (2) he was denied the right to appeal his conviction and

sentence due to the ineffective assistance of his trial counsel; (3) trial counsel’s

performance was adversely affected by a conflict of interest; (4) the prosecutor

engaged in misconduct; (5) his guilty plea was not knowing and voluntary; (6) the

trial judge was biased against him; (7) he is actually innocent; and (8) he was

denied his Sixth Amendment right to counsel during an interrogation.

Respondent moved to dismiss Dampf’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 court concluded Dampf’s convictions became final

on September 17, 2001, because he did not attempt to withdraw his guilty plea or

initiate a direct appeal. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.

2001). The one-year statute of limitations period was not statutorily tolled while

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Dampf pursued state post-conviction relief because he did not first seek that relief

until December 26, 2002, more than one year after his conviction became final. 1

Id. at 1142-43. The district court also concluded Dampf was not entitled to

equitable tolling. Accordingly, the court granted Respondent’s motion and

dismissed Dampf’s habeas petition.

      To be entitled to a COA, Dampf 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 Dampf’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 Dampf is not

      1
        In Nicholson v. Higgins, this court concluded that an application for
judicial review filed pursuant to Okla. Sta. tit. 22, § 982a does not toll the
AEDPA’s one-year limitations period. 147 F. App’x 7, 8 n.2 (10th Cir. 2005).
Dampf’s application for judicial review was filed ten months after his conviction
became final and his first state post-conviction application was filed more than
three months after he was resentenced. Thus, his § 2254 petition is untimely even
if the application for judicial review tolled the limitations period.

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entitled to a COA. Further, the record establishes Dampf has failed to

demonstrate any circumstance that justifies 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 Dampf’s habeas application is not

reasonably subject to debate and his claims are not adequate to deserve further

proceedings. Accordingly, Dampf has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2). This court denies Dampf’s request for a COA and dismisses this

appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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