                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          July 29, 2005
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 JAMES D. TOON,

       Petitioner - Appellant,
                                                        No. 05-7017
 v.                                              (D.C. No. CIV-04–027-WH)
                                                        (E.D. Okla.)
 WALTER DINWIDDIE, Warden, Jess
 Dunn Correctional Center,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Petitioner-Appellant James D. Toon, an Oklahoma inmate appearing pro se,

seeks a certificate of appealability (“COA”) permitting him to appeal the district

court’s order dismissing his petition for a writ of habeas corpus as barred by the

one-year statute of limitations in 28 U.S.C. § 2244(d)(1). Because we find that

the district court’s procedural determination is not fairly debatable, we deny a

COA and dismiss this appeal.

      The parties are familiar with the facts, and we need not repeat them here.

Because the district court’s dismissal was based upon procedural grounds, Mr.

Toon must demonstrate that reasonable jurists would find it debatable whether the
district court’s procedural ruling was correct, and whether his habeas petition

makes a “substantial showing of the denial of a constitutional right.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). After carefully reviewing the record, it is

clear that Mr. Toon cannot meet this burden. Mr. Toon seeks to challenge the

method of good time credit computation currently assessed against his sentence.

However, the record establishes that Mr. Toon became aware of the factual

predicate underlying his claim on August 20, 1999, yet failed to seek redress in

the Oklahoma system until August 29, 2000. Mr. Tool has failed to allege or

demonstrate cause for delay, and his subsequent attempts to obtain post-

conviction relief before the state courts cannot serve to toll an already expired

statute of limitations. See May v. Workman, 339 F.3d 1236, 1237 (10th Cir.

2003). Accordingly, the district court’s determination that Mr. Toon’s petition

was barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(D) is

not fairly debatable.

      We DENY the request for COA and DISMISS the appeal.



                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge



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