                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        July 17, 2006
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 TIM O TH Y LEE SU N D A Y,

       Petitioner - A ppellant,
                                                        No. 06-5020
 v.                                              (D.C. No. 05-CV -209-JOE)
                                                        (N.D. Okla.)
 STA TE OF O K LA H O MA ,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Timothy Lee Sunday, a state inmate appearing pro se, seeks a certificate of

appealability (COA) so that he may appeal from the district court’s denial of his

habeas petition filed pursuant to 28 U.S.C. § 2254. Because M r. Sunday has

failed to demonstrate that it is reasonably debatable whether the district court’s

procedural ruling dismissing his claim is correct, Slack v. M cDaniel, 529 U.S.

473, 484 (2000), we deny a COA and dismiss the appeal.

      On November 6, 1992, a jury convicted M r. Sunday of five counts of sexual

battery in Craig County District Court, Oklahoma. On February 8, 1993, he was
sentenced to one-year imprisonment on each of the five counts. 1 R. Doc. 6 at Ex.

1. H e did not file a direct appeal from his conviction. See R. Doc. 11, Ex. A. O n

M arch 30, 2005 he filed an application for post-conviction relief in state court, R.

Doc. 1, Ex. 2, which was rejected as untimely and frivolous. R. Doc. 13 at 2;

Doc. 1, Ex. 1. Nothing in the record indicates M r. Sunday filed any other form of

post-conviction appeal.

      On April 18, 2005, M r. Sunday filed his federal habeas petition. See R.

Doc. 1. In its amended form, he challenged his conviction and multiple sentences

on several grounds. See R. Doc. 4. On January 9, 2006, without addressing M r.

Sunday’s constitutional claims, the district court dismissed his habeas petition as

time-barred by the one-year limitations period in 28 U.S.C. § 2244(d)(1). R. Doc.

13. M r. Sunday filed a notice of appeal and request for a COA on January 24,

2006. R. Doc. 17. On January 26, the district court denied his request. R. Doc.

22 at 2. W hen the district court denies a habeas petition on procedural grounds

and fails to address the prisoner’s constitutional claims, we may issue a COA only

if the prisoner demonstrates that it is reasonably debatable whether (1) the

petition states a valid claim of the denial of a constitutional right, and (2) the

district court’s procedural ruling is correct. Slack, 529 U.S. at 484.



      1
         M r. Sunday is presently serving a sentence imposed for a conviction
other than the one in this collateral attack. R. Doc. 4 at 2. It appears that the
conviction here was used in A labama habitual offender proceedings, which M r.
Sunday may be challenging in Alabama federal court. Id. at 3.

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      On appeal, M r. Sunday argues the merits of his claims and that the district

court erred in determining that his action is barred by limitations. The district

court’s conclusion that M r. Sunday claims are time-barred is not reasonably

debatable. The Antiterrorism and Effective Death Penalty Act (AEDPA ), enacted

on April 24, 1996, provides that a “1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period

usually commences on “the date on which the judgment became final by . . . the

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

However, a state prisoner whose conviction became final on or before April 24,

1996 must file his § 2254 motion on or before April 24, 1997. See United States

v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d 1223,

1226 (10th Cir. 1998). M r. Sunday did not file a direct appeal from his

conviction, and thus it became final on February 18, 1993, ten days after the

imposition of his judgment and sentence. See Rule 2.1(B), Okla. Stat. tit. 22, Ch.

18, app. Because M r. Sunday’s conviction became final before April 24, 1996, he

had until April 24, 1997 to file his § 2254 petition. He did not file his § 2254

motion until A pril 18, 2005, almost eight years past the deadline.

      The running of the limitations period would be tolled or suspended during

the pendency of any post-conviction or other collateral proceeding filed during

the one-year limitations period. See Hoggro, 150 F.3d at 1226. But a petition for

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post-conviction relief filed in state court after the limitations period has expired

no longer serves to toll it. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th

Cir. 2001). Thus, M r. Sunday’s M arch 30, 2005 application for post-conviction

relief is of no consequence. And although the limitations period for § 2254

motions is subject to equitable tolling in extraordinary circumstances, Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000), M r. Sunday does not raise any

reasons that support tolling here.

      W e GRANT IFP status, DENY a COA, and DISM ISS this appeal.



                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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