                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          December 13, 2005
                                    TENTH CIRCUIT
                                                                             Clerk of Court

 BOBBY JOE HECTOR, JR.,

          Petitioner - Appellant,

 v.                                                        No. 04-6271
                                                       (W.D. Oklahoma)
 STATE OF OKLAHOMA,                                 (D.Ct. No. 04-CV-727-C)

          Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


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



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Petitioner-Appellant Bobby Joe Hector, Jr., a state inmate appearing pro

se, 1 seeks to appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254.

The district court dismissed the petition as time-barred pursuant to 28 U.S.C. §


      1
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
2244(d) and not saved by equitable tolling.

      For this court to have jurisdiction over Hector's appeal, a certificate of

appealability (“COA”) must be granted. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). A COA may not issue unless “the applicant

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

§ 2253(c)(2). When a denial of COA is based on procedural grounds, the

petitioner must demonstrate “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).

      On December 30, 1997, Hector pled guilty to first degree murder in

Oklahoma state court. He was sentenced on February 18, 1998, to life

imprisonment. His conviction became final on February 28, 1998, ten days after

entry of his judgment and sentence, as he did not perfect a direct appeal. See

Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, O KLA . S TAT . A NN .

tit. 22, ch. 18, App. Nor was he granted a direct appeal out of time. Id. at Rule

2.5(A). Accordingly, he had until March 1, 1999, to file his federal habeas

petition. 28 U.S.C. § 2244(d)(1). Hector did not file his federal habeas petition

until June 10, 2004. It is time-barred.

      Hector asserts that under Rule 2.1(E) of the Rules of the Oklahoma Court


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of Criminal Appeals (OCCA) and this Court’s opinion in Orange v. Calbone, 318

F.3d 1167, 1171 (10th Cir. 2003), his application for post-conviction relief to the

OCCA constitutes an appeal out of time and should be considered part of the

direct review process under 28 U.S.C. § 2244(d)(1)(A). Therefore, he argues the

pertinent date for the running of the one-year limitation period should be June 12,

2003, when the OCCA denied his post-conviction appeal out of time. This

argument is without merit. Orange involved a direct appeal out of time, not a

post-conviction appeal out of time. Orange, 318 F.3d at 1171-72. The denial of

post-conviction relief in these circumstances is not a part of the direct review

process.

      The district court concluded that Hector's application for post-conviction

relief did not serve to toll the limitations period and is not reasonably debatable,

nor has he satisfied the grounds for equitable tolling. We agree. Accordingly, we

DENY Hector's application for a COA and DISMISS the appeal.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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