                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            June 3, 2005
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 ROGER CLEON DAVISON,

       Petitioner-Appellant,
                                                        No. 05-3000
 v.                                            (D.C. No. 03-CV-3200-SAC)
                                                          (D. Kan.)
 ROBERT D. HANNIGAN, Warden,
 Hutchinson Correctional Facility, and
 CARLA STOVALL, Attorney General,
 State of Kansas,

       Respondents-Appellees.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Roger Davison, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition. For substantially the same reasons set forth by the district court, we

DENY Davison’s request for a COA and DISMISS.

      Following Davison’s appeal of his convictions for aggravated indecent

liberties, Davison’s conviction became final on February 9, 2000 upon the

expiration of his time for filing a Petition for Certiorari with the United States

Supreme Court. The one-year statute of limitations for filing a federal habeas
petition under § 2254 began to run at this time. On August 2, 2000, after 173

days of the limitations period elapsed, Davison filed a state post-conviction

review motion under Kan. Stat. Ann. § 60-1507 challenging his convictions. This

filing tolled the habeas statute of limitations until the Kansas Supreme Court

denied review on May 1, 2002, leaving Davison with 192 days remaining in his

habeas limitations period set forth in 28 U.S.C. § 2244(d)(1). Davison did not

file the instant § 2254 1 petition in federal district court until 356 days later.

Finding that the statute of limitations period had elapsed, the district court

rejected Davison’s claim for equitable tolling based on an alleged deprivation of

access to his legal papers. After reviewing the record, we agree that Davison has

failed to demonstrate either that extraordinary circumstances beyond his control

prevented him from filing his petition on time, or that he diligently pursued his



   1
     Davison’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). “When the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, 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); Adams v. Lemaster , 223 F.3d 1177,
1179 (10th Cir. 2000) . Because the district court denied Davison a COA, he may
not appeal the district court’s decision absent a grant of COA by this court.

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claims throughout the period that he seeks to toll.     See Miller v. Marr , 141 F.3d

976, 978 (10th Cir. 1998).

       Accordingly, Davison ’s application for a COA is DENIED and the appeal

is DISMISSED.

                                                   ENTERED FOR THE COURT

                                                   Carlos F. Lucero
                                                   Circuit Judge




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