                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                December 30, 2013
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



KYLE RICHARD ECKARDT,

             Petitioner-Appellant,
                                                        No. 13-6201
v.                                              (D.C. No. 5:13-CV-00602-D)
                                                      (W.D. Oklahoma)
JUSTIN JONES, Director,

             Respondent-Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      Proceeding pro se, Oklahoma state prisoner Kyle Richard Eckardt seeks a

certificate of appealability (“COA”) so he can appeal the district court’s denial of

the habeas petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order

disposing of a § 2254 petition unless the petitioner first obtains a COA).

      Eckardt was convicted of first degree murder after entering an Alford plea

on September 16, 2011. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). On

September 20, 2011, he was sentenced to life imprisonment without the

possibility of parole. Eckardt did not seek to withdraw his plea or appeal his
conviction or sentence. Instead, he filed a state application for post-conviction

relief on February 5, 2013. The denial of this application was affirmed by the

Oklahoma Court of Criminal Appeals on May 17, 2013.

      Eckardt filed the instant § 2254 petition on June 10, 2013. Respondent

moved to dismiss the petition, arguing it was filed after the expiration of the one-

year limitations period established by the AEDPA. See 28 U.S.C. § 2244(d)(1)

(setting forth a one-year statute of limitations for § 2254 applications). The

matter was referred to a magistrate judge who recommended the petition be

dismissed because it was untimely and Eckardt did not meet the standards for

statutory or equitable tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142-43

(10th Cir. 2001) (holding there is no statutory tolling for time spent in state post-

conviction proceedings if relief is not sought until after the one-year limitations

period has expired).

      Eckardt filed timely objections to the magistrate judge’s recommendation

and those objections were considered de novo by the district court. The court,

however, adopted the magistrate judge’s recommendation and dismissed Eckardt’s

§ 2254 petition as untimely.

      To be entitled to a COA, Eckardt 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

                                         -2-
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). Our review of the record

demonstrates that the district court’s dismissal of Eckardt’s § 2254 petition as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal.

      We deny Eckardt’s request for a COA and dismiss this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




                                         -3-
