                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                February 7, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                        No. 07-3267
       v.                                               (D. Kansas)
 DALE CLAYTON,                               (D.C. Nos. 07-CV-4016-SAC and
                                                   03-CR-40045-SAC)
             Defendant-Appellant.



                                     ORDER


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Dale Clayton, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s order denying his motion to

vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The

district court denied his § 2255 motion as untimely, because it was filed more

than a year after his conviction became final. For the reasons explained below,

we deny Mr. Clayton’s request for a COA, and dismiss the matter.

                                I. BACKGROUND

      Mr. Clayton pleaded guilty to one count of distribution of a mixture or

substance containing a detectable amount of cocaine base, in violation of 21

U.S.C. § 841(a)(1). The plea agreement included a waiver of both direct appeal
and collateral attack. The district court sentenced Mr. Clayton to 151 months’

imprisonment, which was the bottom of the applicable sentencing guideline range.

Mr. Clayton appealed to this court, alleging a violation of Booker. We rejected

his appeal, because it was “within the scope of an enforceable waiver.” United

States v. Clayton, 416 F.3d 1236, 1239 (10th Cir. 2005). We issued the mandate

on September 12, 2005. Mr. Clayton sought a writ of certiorari from the United

States Supreme Court, which the Court denied on January 6, 2006. Mr. Clayton

filed his § 2255 motion on January 29, 2007, which the district court denied.

                                  II. DISCUSSION

      The district court construed Mr. Clayton’s “notice of appeal” as an

application for a COA, which it denied. A COA may issue only “if the applicant

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

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). When a district court has dismissed a habeas petition on procedural

grounds, a certificate will only issue when “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). We construe Mr. Clayton’s pro se petition




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and appellate filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972);

Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

      Mr. Clayton filed his § 2255 motion on January 29, 2007, which he

concedes exceeded the governing one-year limitation period under § 2255 ¶ 6(1).

However, Mr. Clayton argues that he is entitled to equitable tolling because he

diligently pursued assistance in filing his § 2255 motion. We agree with the

district court that Mr. Clayton’s “vague and conclusory allegation that he could

not find any reliable assistance for eleven months is insufficient to support

equitable tolling.” Rec. doc. 86, at 4-5. He has failed to demonstrate that his

“failure to timely file was caused by extraordinary circumstances beyond his

control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

                                III. CONCLUSION

      Because jurists of reason would not find the district court’s conclusions

debatable, we DENY Mr. Clayton’s request for a COA, and DISMISS the matter.


                                 Entered for the Court,




                                 ELISABETH A. SHUMAKER, Clerk




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