                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 16, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT


 WILLIAM D. WOOD, JR.,

          Petitioner-Appellant,
                                                         No. 08-6052
 v.                                               (D.C. No. CV-07-1280-HE)
                                                         (W.D. Okla.)
 JUSTIN JONES, Director of D.O.C.,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Petitioner-Appellant William Dee Wood, Jr., a federal prisoner acting pro

se, appeals from the district court’s dismissal of his petition for habeas corpus.

The district court determined that the petition was time-barred. Mr. Wood also

seeks leave to proceed in forma pauperis (“IFP”). Reviewing Mr. Wood’s filings

liberally, 1 we hold that no reasonable jurist could conclude that the district court’s

      *
              This Order is not binding precedent, except under the doctrines of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. After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
               Because Mr. Wood is proceeding pro se, we review his pleadings and
                                                                     (continued...)
dismissal on procedural grounds was incorrect. See Slack v. McDaniel, 529 U.S.

473, 484 (2000). Accordingly, we decline to issue a Certificate of Appealability

(“COA”), deny his request to proceed IFP, and dismiss his appeal.

                                I. BACKGROUND

      Mr. Wood was convicted on state criminal charges, and the Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed on March 6, 2006. Mr. Wood did

not petition for a writ of certiorari but instead submitted two post-conviction

applications for relief which were file-stamped by the court clerk on June 7, 2007

and July 26, 2007. The state court denied Mr. Wood post-conviction relief. Mr.

Wood filed his habeas petition on November 13, 2007.

                                 II. DISCUSSION

      Mr. Wood contends that the district court erred in time-barring his federal

habeas corpus claims and that the district court applied federal law incorrectly.

Mr. Wood references on appeal the arguments raised in his 28 U.S.C. § 2254

petition for writ of habeas corpus: (1) that the trial court should have excluded

his racially biased statement as irrelevant and unfairly prejudicial; (2) that his

sentence was excessive; (3) that appellate counsel provided constitutionally

ineffective assistance of counsel; (4) that evidence found on his person should

have been suppressed; (5) that the trial court should have excused three jurors



      1
        (...continued)
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
based upon his request; (6) that the trial court should have conducted further voir

dire into racial prejudice after racially charged statements were allowed into

evidence; (7) that the state violated due process by not bringing phone records

into evidence; (8) that the trial court sentenced him more harshly because he

chose a jury trial; and (9) that the state never proved the element of intent.

      To obtain the jurisdictionally prerequisite COA, Mr. Wood must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). The Supreme Court has clarified that where, as here, the district

court denies a habeas petition on procedural grounds, a petitioner must show that

reasonable jurists would find debatable both (1) whether the petition states a valid

claim of the denial of a constitutional right, and (2) whether the district court was

correct in its procedural ruling. Slack, 529 U.S. at 484. “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 petition should be allowed to proceed

further.” Id. Mr. Wood has not made the requisite showing.

      “We review the district court’s factual findings for clear error and its legal

conclusions de novo.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

The limitations period for habeas corpus relief consists of one year, beginning (as

relevant here) when the judgment becomes final through “direct review or the

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


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period ended on June 5, 2007.

      As noted above, the OCCA affirmed Mr. Wood’s conviction on March 6,

2006. He then had ninety days to file a petition for a writ of certiorari in the

United States Supreme Court. 28 U.S.C. § 2101(c). The ninetieth day was June

4, 2006. Mr. Wood failed to file a petition for certiorari, and his conviction

became “final” on June 5, 2006. 2 In the absence of tolling, Mr. Wood would have

had until June 5, 2007 to file a habeas petition. 28 U.S.C. § 2244(d)(1)(A).

      Mr. Wood argues on appeal that the federal mailbox rule applies, and the

Court should consider his first application for post-conviction relief to be filed on

the day that he had verified the pleading—May 29, 2007—or, alternatively, the

day he gave his application to the prison mail officials—May 30, 2007. However,

Oklahoma state courts do not recognize the federal mailbox rule for criminal

matters. See Moore v. Gibson, 250 F.3d 1295, 1298-99 (10th Cir. 2001)

(“Because Oklahoma does not recognize the prisoner mailbox rule, it is

immaterial when [the prisoner] gave his petition to prison officials . . . .”). Thus,

we may not consider the post-conviction application as filed before June 7,

2007—the date the application was received and file-stamped by the court clerk.

See id. By June 7, 2007, the applicable limitations period had already expired.

      Even in the absence of statutory tolling, the limitations period may be

      2
            Because June 4, 2006 fell on a Sunday, it is not included in the time
computation pursuant to Fed. R. Civ. P. 6(a)(3) and, accordingly, Mr. Wood
gained an additional day.

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subject to equitable tolling “in rare and exceptional circumstances.” York v.

Galetka, 314 F.3d 522, 527 (10th Cir. 2003) (citing Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000)). We have thoroughly reviewed the record and see no

such circumstances here. Finally, because Mr. Wood has failed to present a

“reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997) (internal quotations omitted), we deny his motion to proceed IFP.

                               III. CONCLUSION

      Accordingly, we DENY Mr. Wood’s request for a COA, DENY his request

to proceed IFP, and DISMISS his appeal.




                                              ENTERED FOR THE COURT


                                              Jerome A. Holmes
                                              Circuit Judge




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