                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 22, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT



 DECARLO TERRELL MITCHELL,

                 Petitioner-Appellant,                  No. 10-6085
          v.                                          (W.D. of Okla.)
 MIKE MULLIN, Warden,                         (D.C. No. 5:09-CV-01064-HE)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      DeCarlo Terrell Mitchell, a state prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal from the dismissal of his habeas

petition brought pursuant to 28 U.S.C. § 2254. The district court dismissed the

petition as untimely. Having jurisdiction pursuant to 28 U.S.C. § 1291, we

DENY Mitchell’s request for a COA and DISMISS this appeal.




      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                    I. Discussion

      A state petitioner may not appeal from the denial of a § 2254 petition

without first obtaining a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). When, as is the case here, the district

court denies the petition on procedural grounds, we will issue a COA only if the

petitioner demonstrates “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). We conclude

the district court was correct in its procedural ruling that Mitchell’s petition is

untimely.

      A state prisoner who wishes to file an application for a writ of habeas

corpus faces a one-year statute of limitations. 28 U.S.C. § 2244(d). The period

begins to run from the latest of four dates, two of which are relevant here: (1)

“the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review,” 28 U.S.C.

§ 2244(d)(1)(A); or (2) “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D).




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      The following dates are relevant to timeliness. On August 8, 2002,

Mitchell pleaded guilty to and was convicted of first degree rape in Oklahoma

state court. The court sentenced him on August 23, 2002 to twenty-five years in

prison. Mitchell did not file a motion to withdraw his guilty plea, and his

conviction became final on September 2, 2002. Mitchell did not file a direct

appeal in state court but did file four applications for post-conviction relief. He

filed the first on March 24, 2003, and the Oklahoma County District court denied

the application on November 6, 2003. Mitchell appealed the denial, but the

Oklahoma Court of Criminal Appeals affirmed on February 17, 2004. Mitchell

then filed subsequent applications for post-conviction relief in February 2006,

September 2007, and November 2008, all of which were denied.

      Regarding § 2244(d)(1)(A), Mitchell’s statutory limitation period would

have expired on September 2, 2003, one year from the date his conviction became

final. But the limitation period may be tolled by a properly filed application for

state post-conviction relief. § 2244(d)(2). Thus, the period was tolled from

March 24, 2003, when Mitchell filed his first application for relief, to February

17, 2004, when the Court of Appeals affirmed the district court’s denial. On that

date, the statutory period began running again and expired on July 28, 2004.

Mitchell did file other applications for post-conviction relief in 2006 and 2007,

but by then the statutory period had already lapsed.




                                          -3-
      Regarding § 2244(d)(1)(D), Mitchell contends he did not discover the

state’s lack of evidence until May 7, 2009, and thus the statute of limitations

should run from that date because that is the date “on which the factual predicate

of his claim could have been discovered through the exercise of due diligence.”

§ 2244(d)(1)(D). In other words, Mitchell argues that he could not have

discovered the state’s lack of evidence against him until May 7, 2009, and thus

the statute of limitations should not have begun running until then. Even if

Mitchell’s evidence were indeed “exculpatory,” as he claims, he offers no

explanation as to why it took him seven years to inquire about it. He could have

discovered the state of the evidence against him at any time after his conviction

with minimal effort, much less the due diligence the statute requires. Thus,

pursuant to § 2244(d)(1)(D), Mitchell’s petition is untimely.

      Mitchell also asserts equitable tolling is appropriate in this case because he

is actually innocent. While we limit the use of equitable tolling to “‘rare and

exceptional’ circumstances. . . . [It] is appropriate . . . when a prisoner is actually

innocent, when an adversary’s conduct—or other uncontrollable circumstances—

prevents a prisoner from timely filing, or when a prisoner actively pursues

judicial remedies but files a defective pleading during the statutory period.”

Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003) (quoting Gibson v. Klinger,

232 F.3d 799, 808 (10th Cir. 2000)). Nevertheless, in order to avail themselves

of equitable tolling, inmates must diligently pursue their claims and demonstrate

                                           -4-
that “the failure to timely file was caused by extraordinary circumstances beyond”

their control. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

      Mitchell has failed to make such a demonstration. The time that passed

from the date of his conviction to the date of his learning of the state’s evidence

demonstrates he has not been diligent in pursuing his claims, especially when

only minimal effort was necessary. We therefore do not find this case appropriate

for equitable tolling.

                                   II. Conclusion

      For the foregoing reasons, we DENY Mitchell’s request for a COA and

DISMISS his appeal. We also GRANT Mitchell’s request to proceed in forma

pauperis.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Circuit Judge




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