                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 PATRICK H. BRUNER,

          Petitioner-Appellant,
 v.                                                     No. 10-6023
 JUSTIN JONES, Director of the                   (D.C. No. CV-09-01174-W)
 Oklahoma Department of Corrections,                    (W.D. Okla.)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


      Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.


      Patrick H. Bruner, an Oklahoma state prisoner appearing with counsel,

seeks a certificate of appealability (“COA”) so that he might challenge the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely filed.

For the following reasons, we DENY Bruner’s request for a COA and DISMISS

this matter.

                                         I

      In December 2005, an Oklahoma jury convicted Bruner of one count of

first degree murder, one count of felonious possession a firearm, and one count of


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
aggravated attempt to elude a police officer. Bruner was subsequently sentenced

to life without the possibility of parole for his murder conviction and to two lesser

terms of imprisonment on his remaining convictions, with all three terms to run

concurrently. On November 20, 2007, the Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed Bruner’s convictions and sentences on direct appeal. See

Bruner v. State, No. F-2006-407 (Okla. Crim. App. Nov. 20, 2007). Bruner did

not seek a writ of certiorari from the United States Supreme Court, nor did he

seek state post-conviction relief.

      On October 27, 2009, nearly two years after the OCCA had affirmed his

convictions and sentences, Bruner filed a petition for a writ of habeas corpus in

the federal district court, seeking relief pursuant to § 2254. Bruner’s petition was

referred to the magistrate judge who recommended that it be dismissed as

untimely filed under 28 U.S.C. § 2244(d). After having received Bruner’s

objections, the district adopted the magistrate judge’s recommendation and

entered an order dismissing Bruner’s petition. Bruner now seeks to appeal.

                                          II

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

COA is a jurisdictional prerequisite to our review of the dismissal of a § 2254

petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711, 713

(10th Cir. 2006). Where, as here, the district court dismisses a petition on

procedural grounds, we will grant a COA only if the petitioner can “demonstrate

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both 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.’”

See Clark, 468 F.3d at 713 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      In pursuit of a COA, Bruner concedes that his § 2254 petition was untimely

filed and that because he did not seek state post-conviction relief, the statutory

tolling provisions of § 2244(d)(2) are inapplicable. Bruner contends, however,

that he is entitled to equitable tolling given the fact that “[a]t the conclusion of

his direct appeal, [he] was never instructed by his attorney that he had only [one]

year to file for a writ of habeas [corpus].” See Pet. Op. Br. at 12. However,

even if this is true, because Bruner has not shown that he diligently pursued his

federal claims before § 2244(d)(1)’s one-year limitation period expired, jurists of

reason would not debate the district court’s conclusion that he is not entitled to

have that limitation period equitably tolled. See Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000) (explaining that equitable tolling is available only when “an

inmate diligently pursues his claims and demonstrates that the failure to timely

file was caused by extraordinary circumstances beyond his control”).




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                              III

We DENY Bruner’s request for a COA and DISMISS this matter.


                                    Entered for the Court


                                    Mary Beck Briscoe
                                    Chief Judge




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