                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                 September 5, 2007
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 D A V ID LEE Y O U N G,

                 Petitioner-A ppellant,                  No. 07-6130
          v.                                    W estern District of Oklahoma
 M IKE ADDISO N, W arden,                         (D.C. No. 07-CV-114-M )

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      David Lee Young, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal from the district court’s order denying his habeas

corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because

we conclude that M r. Young has failed to make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

COA, and dismiss the appeal.




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                    Background

      On June 16, 2003, M r. Young, then represented by retained counsel,

pleaded guilty to three counts of kidnaping, two counts of robbery with firearms,

and one count of larceny of an automobile. The conviction and sentence w ere

entered by the D istrict Court of O klahoma County on August 1, 2003. On A ugust

7, 2003, M r. Young filed a Notice of Plea Withdrawal with the court. This notice

was timely under Rule 4.2(A) of the Oklahoma Court of Criminal Appeals, which

allows defendants to appeal from conviction on a guilty plea only if they have

applied to withdraw their plea within ten days of the date of the pronouncement of

the judgment and sentence. Okla. Ct. Crim. App. R. 4.2(A). The court dismissed

M r. Young’s motion, and he did not timely appeal the dismissal. However, on

June 7, 2004, with the assistance of counsel from the O klahoma Indigent Defense

System, M r. Young was granted leave to file an appeal out-of-time to challenge

the district court’s denial of his motion to withdraw his plea. On February 11,

2005, the Oklahoma Court of Criminal Appeals considered the appeal and

affirmed M r. Y oung’s sentence.

       On January 29, 2007, M r. Young filed a petition for habeas corpus under

28 U.S.C. § 2254 in the W estern District of Oklahoma. He asserted that he had

received ineffective assistance of counsel at the time of his plea and that the

Oklahoma procedure for withdrawing a guilty plea interfered with his ability to

discover and raise this claim. The petition was reviewed by a magistrate judge,


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who found it time-barred and recommended dismissal. The district court agreed

and dismissed the petition on M ay 15, 2005. M r. Young now seeks a COA to

appeal this dismissal.

                                      Discussion

      A final order denying relief under 28 U.S.C. § 2254 may be appealed only

if the district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(A).

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). Where, as here, the

district court denies a habeas petition on procedural grounds,

        a COA should issue when the prisoner shows, at least, that jurists of
        reason would find it debatable whether the petition states a valid
        claim of the denial of a constitutional right and that jurists of reason
        would find it debatable whether the district court was correct in its
        procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, we conclude that no

reasonable jurist would find the correctness of the district court’s procedural

ruling debatable.

      The district court held that M r. Young’s petition violated the one-year

statute of limitations imposed on habeas petitions by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). This

limitations period runs “from the latest of” one of four possible start dates, id.,

and is tolled while properly filed applications for state post-conviction relief or

other collateral review are pending, id. § 2244(d)(2). Under subparagraph (A),


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the limitations period begins to run on “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking

such review.” Id. § 2244(d)(1)(A). Because M r. Young did not petition the

Supreme Court of the United States for certiorari after his loss before the

Oklahoma Court of Criminal Appeals, his conviction became final for purposes of

subparagraph (A) ninety days after that court’s order affirming his conviction.

See Rhine v. Boone, 182 F.3d 1153, 1155–56 (10th Cir. 1999). Thus M r. Young’s

conviction became final on M ay 12, 2005, and he had until M ay 12, 2006, to file

his petition for habeas corpus. Under subparagraph (A), then, his January 29,

2007 petition was untimely by at least 243 days.

      M r. Young argues, as he did below, that the timeliness of his petition

should instead be governed by subparagraph (B) or (D), 28 U.S.C. §

2244(d)(1)(B) & (D). We disagree.

      Under subparagraph (B), the one-year limitations period would begin to run

on “the date on which the impediment to filing an application created by State

action in violation of the Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State action.” Id. §

2244(d)(1)(B). M r. Young asserts that Oklahoma’s procedures for withdrawing a

plea of guilty “interfered with his ability to discover and raise his ineffective

assistance of counsel claims.” Petr.’s Br. 2. Specifically, he claims that “[u]nder

Oklahoma law, trial counsel was required to prepare a motion raising ineffective


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assistance of counsel claims against himself,” which creates what he calls a

conflict of interest. This argument is misdirected. Oklahoma’s procedure for

withdrawing a guilty plea in state court did not “prevent” M r. Young from filing a

federal habeas petition two years later. And even if M r. Young’s retained

attorney during the plea stage could be said to have been unconstitutionally

conflicted, this “impediment” had surely been removed by 2004, at which time

M r. Young was represented by new counsel from the Oklahoma Indigent Defense

System. This alleged conflict, then, could not have interfered with M r. Young’s

ability to meet a one-year deadline running from May 2005.

      Alternatively, M r. Young argues, under subparagraph (D) the limitations

period should run from “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D). Mr. Young never suggests any specific

date on which he could have discovered his claim for ineffective assistance of

counsel, although we suppose he thinks it must have been at some time after

January 10, 2006, which would make his petition timely. However, the record

indicates that M r. Young had knowledge of this claim shortly after his conviction.

In his Notice of Plea Withdrawal, filed only days after his conviction, M r. Young

asserted that his attorney was “ineffective in his representation” and that the

advice he had received on the plea agreement was “misleading.” R. Doc. 1, Ex. 9,

at 2. Further, he was represented by new counsel at that hearing and on appeal


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before the Court of Criminal Appeals. Had M r. Young exercised due diligence, as

is required in order to qualify for a delayed trigger date under § 2244(d)(1)(D), he

would have asserted his claim as soon as he discovered it. As the magistrate

judge held, Mr. Young has “failed to articulate any reason for the lengthy delay in

discovering the factual basis of his ineffective assistance of counsel claim.” R.

Doc. 18, at 6.

      Finally, M r. Young asserts that he qualifies for equitable tolling of the

limitations period. However, equitable tolling only applies when it is shown that

a prisoner “diligently pursues his claims and demonstrates that the failure to

timely file was caused by extraordinary circumstances beyond his control.”

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Mr. Young has not made

any showing of “extraordinary circumstances” that prevented him from filing his

petition.

      For these reasons, we reject M r. Young’s reliance on 28 U.S.C. §

2244(d)(1)(B) or (D), and agree with the court below that his petition was

untimely under subparagraph (A) of that section.

                                    Conclusion

      Accordingly, we DENY M r. Young’s request for a COA and DISM ISS this

appeal. His motion to proceed in forma pauperis is also DENIED.

                                                     Entered for the Court,

                                                     M ichael W. McConnell
                                                     Circuit Judge

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