                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 21, 2008
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 DANIEL LAMONT JOHNSON,

              Petitioner - Appellant,                   No. 08-6024
       v.                                            (W.D. Oklahoma)
 JUSTIN JONES, Director,                        (D.C. No. 5:07-CV-1013-F)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      On September 13, 2007, Daniel Lamont Johnson filed in the United States

District Court for the Western District of Oklahoma an application for a writ of

habeas corpus under 28 U.S.C. § 2254. The district court dismissed his

application as time-barred. Mr. Johnson now seeks a certificate of appealability

(COA) to appeal that dismissal. See id. § 2253(c) (requiring COA to appeal

denial of application). We deny his request for a COA and dismiss this appeal.

      Mr. Johnson pleaded guilty in Oklahoma state court on October 19, 2004,

to robbery with firearms, shooting with the intent to kill, and kidnapping. He was

sentenced the same day. He did not pursue an appeal, but on October 14, 2005,

he filed a motion to modify his sentence, which the court denied on November 23,

2005. On August 3, 2006, he filed in the state court an application for
postconviction relief. The court denied the application on November 3, 2006, and

he did not appeal that decision. He filed a second application for postconviction

relief in state court on March 16, 2007; it was denied on April 3, 2007. He

appealed that decision to the Oklahoma Court of Criminal Appeals, which

affirmed the denial on May 29, 2007.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

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      The Antiterrorism and Effective Death Penalty Act provides that a habeas

application from a prisoner in state custody must be filed within one year of “the

date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The

limitations period, however, is tolled for “[t]he time during which a properly filed

application for State post-conviction relief or other collateral review with respect

to the pertinent judgment or claim is pending . . . .” Id. §2244(d)(2); but see

Bridges v. Johnson, 284 F.3d 1201, 1203-04 (11th Cir. 2002) (motions to modify

sentences do not toll the limitations period). In addition, equitable tolling of the

one-year period may be granted, but only in “rare and exceptional circumstances.”

York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003).

      Mr. Johnson’s application under § 2254 is clearly time-barred. He pleaded

guilty on October 19, 2004. Oklahoma Court of Criminal Appeals Rule 4.2(A)

states: “In all cases, to appeal from any conviction on a plea of guilty . . . , the

defendant must have filed in the trial court clerk’s office an application to

withdraw the plea within ten (10) days from the date of the pronouncement of the

Judgment and Sentence . . . .” Okla. Stat. tit. 22, ch. 18, App. Rule 4.2(A)

(2003). Because Mr. Johnson failed to file a motion to withdraw his guilty plea,

his conviction became final for § 2244(d) purposes on October 29, 2004, ten days

after the entry of his judgment and sentence. See Thomas v. Hargett, 162 F.3d

1174, at *1 (10th Cir. 1998) (unpublished decision table). The § 2244 limitations

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period therefore expired by October 30, 2005. Even assuming that all

Mr. Johnson’s state proceedings tolled the one-year limitations period, the

untolled period between October 30, 2004, and the filing of his § 2254 application

for relief on September 13, 2007, well exceeded a year.

      Mr. Johnson argues that the limitations period should be equitably tolled.

In district court he claimed that he was delayed by inadequate access to the prison

law library (6 hours per week), his low intelligence, and trial counsel’s ineffective

assistance. But he asserted only that these circumstances “may be the reason why

[he] was not able to[] timely appeal [sic],” R. Doc. 17 at 2 (emphasis added), and

failed to elaborate on how these circumstances in fact caused the delay. He has

not explained why the limitation on his access to the prison law library precluded

a timely § 2254 application, and the other circumstances, without more, do not

justify tolling. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000)

(“attorney’s . . . mistake is not a basis for equitable tolling.”); United States v.

Richardson, 215 F.3d 1338 (10th Cir. 2000) (unpublished decision table)

(learning disability does not toll limitations period). Thus, his application for

relief under § 2254 is untimely.

      Because no reasonable jurist could debate the correctness of the district

court’s ruling, we DENY Mr. Johnson’s request for a COA and DISMISS this

appeal. We DENY Mr. Johnson's motion to proceed in forma pauperis on appeal.




                                           -4-
We remind him of his obligation to pay the filing fee even on an appeal that has

been dismissed.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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