                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         July 14, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                     Elisabeth A. Shumaker
                                 TENTH CIRCUIT                           Clerk of Court



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,                             No. 06-3071
 v.                                                (D.C. Nos. 00-CR-40024-
                                                  04-SAC; 06-CV-3018-SAC)
 JIM M Y D . M A U LD IN ,                                (D . Kan.)

       Defendant - Appellant.



                       OR DER DENYING CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M cKA Y , and LUCERO, Circuit Judges.


      Jimmy D. M auldin, a federal prisoner, requests a certificate of appealability

(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas

petition. For substantially the same reasons as set forth by the district court, w e

D EN Y a COA and DISM ISS.

      In August of 2002, M auldin was convicted of one count of conspiracy to

manufacture and distribute in excess of one kilogram of methamphetamine in

violation of 21 U.S.C. § 846 and was sentenced to 146 months’ imprisonment.

Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), and more than three years after his conviction, M auldin filed a habeas

petition in federal court arguing that his sentence was unconstitutionally imposed
in light of Booker. Specifically, he asserted that his sentence was improperly

enhanced based on judicial findings as to the quantity of drugs, his possession of

a firearm and stick of dynamite found during a search of his residence, and his

role in obstructing justice. The district court ruled that his petition was time-

barred. A subsequent application for a COA was denied. Having failed to secure

a COA from that court, M auldin now seeks a COA from us. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U .S.C. § 2244(d). It states:

             (1) A 1-year period of limitation shall apply to an application
      for a writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of –
                  (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review ;
                  (B) the date on which the impediment to filing an
      application created by State action in violation of the Constitution or



      1
         M auldin’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath 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. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner's right to appeal a denial of habeas relief under
§ 2255 upon a grant of a CO A. 28 U.S.C. § 2253(c)(2). A COA may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires M auldin to show “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the district
court denied M auldin a COA, he may not appeal the district court’s decision
absent a grant of COA by this court.

                                            -2-
      laws of the United States is removed, if the applicant was prevented
      from filing by such State action;
                  (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been
      newly recognized by the Supreme Court and made retroactively
      applicable to cases on collateral review; or
                  (D) the date on which the factual predicate of the claim or
      claims presented could have been discovered through the exercise of
      due diligence.
              (2) The time during which a properly filed application for
      State post-conviction or other collateral review with respect to the
      pertinent judgment or claim is pending shall not be counted toward
      any period of limitation under this subsection.

      Because M auldin did not appeal his sentence, the statute of limitations

began running on August 20, 2002, ten days after judgment was entered. See

United States v. Hurst, 322 F.3d 1256, 1259-60 (10th Cir. 2003) (holding that the

statute of limitations period to file a habeas petition begins running the day after

the time for filing an appeal has expired). Thus, M auldin had until August 20,

2003, to file a timely habeas petition. See id. at 1261.

      M auldin’s petition was filed more than three years after his conviction

became final. M auldin argues, however, that his petition is timely because, under

§ 2244(d)(1)(C), he had one year to file a habeas petition after the Supreme

Court’s decision in Booker, which established a new right. However, Booker

does not apply retroactively on collateral review, and thus § 2244(d)(1)(C) does

not apply. United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005). Nor

does M auldin present any argument that the statute of limitations in this case

should be equitably tolled. See M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

                                         -3-
2000) (holding that equitable tolling is available “when an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control”). M auldin’s habeas petition is

time-barred under A EDPA.

      Accordingly, M auldin’s application for a COA is DENIED.


                                       ENTERED FOR THE COURT


                                       Carlos F Lucero
                                       Circuit Judge




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