                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             October 26, 2011
                                    TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court


 ERIC LEE PHILLIPS,

        PetitionerAppellant,
                                                               No. 11-5100
 v.                                               (D.C. No. 4:11-CV-00025-CVE-FHM)
                                                               (N.D. Okla.)
 MIKE ADDISON, Warden,

        RespondentAppellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


       Eric Lee Phillips, a state prisoner proceeding pro se, applies for a Certificate of

Appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254

petition. We deny a COA and dismiss his appeal.

                                              I

       After pleading guilty in Oklahoma state court to two counts each of first degree

murder and unauthorized removal of a dead body, Phillips was sentenced to life


       * This order is not binding precedent, except under the doctrines of law of the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.
imprisonment on March 3, 2009. He did not move to withdraw his plea or otherwise

pursue direct appeal of his conviction. On November 16, 2009, a state district court

judge held a hearing to review Phillips’ sentence but denied his request for modification.

On February 22, 2010, Phillips filed for state post-conviction relief, arguing that his plea

was not knowing and voluntary. The trial court denied his claim, and the Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed on July 13, 2010.

       On August 23, 2010, Phillips’ aunt sent an email to Stanley Monroe, an attorney

who represented Phillips in the state post-conviction proceedings, inquiring about the

next steps in Phillips’ case. Monroe replied that they could discuss a potential federal

habeas petition in September. On December 15, Phillips’ aunt sent another email seeking

an update. Monroe replied that he thought that Phillips had a viable federal habeas claim

and that the deadline to file a habeas petition would be July 13, 2011—one year from the

OCCA’s denial of Phillips’ application for state post-conviction relief. However,

Monroe indicated that he would not have time to prepare a petition for Phillips in the

immediate future. He offered to assist Phillips with a pro se petition or to have Phillips

wait until his workload lessened, “probably in May.”

       Phillips filed a pro se § 2254 petition on January 11, 2011. The district court

determined that the deadline for filing that petition passed on August 20, 2010, dismissed

the petition, and denied COA. In doing so, the court held that Phillips was entitled to

statutory tolling for the time spent pursuing state post-conviction relief, but rejected

Phillips’ argument that he was entitled to equitable tolling because of attorney Monroe’s
                                             -2-
misadvice.

                                              II

        Subject to limited exceptions, the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) imposes a one-year statute of limitations on habeas petitions. 28 U.S.C.

§ 2244(d)(1). The one-year period usually starts at “the conclusion of direct review or

the expiration of the time for seeking such review.” § 2244(d)(1)(A). Phillips’ AEDPA

clock began to run on March 14, 2009, ten days after he was sentenced. See Okla. Ct.

Crim. App. R. 4.2(a) (defendant who pleads guilty is permitted ten days to seek

withdrawal of plea and appeal). Thus without any tolling of the statute of limitations, the

period for Phillips to file a federal habeas petition would have expired on March 14,

2010.

        However, an inmate is entitled to statutory tolling of the limitations period while a

properly filed application for state post-conviction relief is pending. § 2244(d)(2). When

Phillips filed his state post-conviction relief petition on February 22, 2010, he had 20

days remaining to file a federal petition. His state filing suspended the limitations period

until the OCCA denied his petition on July 13, 2010. Thus, the limitations period for

Phillips’ federal petition expired 20 days after that date, on August 2, 2010.1


        1
          In several unpublished cases, we have held that a request for judicial review of a
sentence under Okla. Stat. tit. 22, § 982a—a discretionary, non-appealable form of
relief—does not toll the AEDPA limitations period. See, e.g., Bohon v. Oklahoma, 313
F. App’x 82, 84 n.1 (10th Cir. 2008) (unpublished); Nicholson v. Higgins, 147 F. App’x
7, 8 n.2 (10th Cir. 2005) (unpublished). Phillips does not argue he should be entitled to
                                                                              Continued . . .
                                             -3-
       Phillips argues that he is also entitled to equitable tolling of the limitations period

because of attorney Monroe’s erroneous advice that a federal habeas petition would not

be due until July 13, 2011. Equitable tolling “is only available when an inmate diligently

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

extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000). Because habeas petitioners have no constitutional right to counsel,

“[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling” without

more. Lawrence v. Florida, 549 U.S. 327, 336-37 (2007). When attorney error rises to

the level of egregious misconduct, however, we have allowed for equitable tolling. See

Fleming v. Evans, 481 F.3d 1249, 1255-57 (10th Cir. 2007). In Fleming, for example,

we concluded that equitable tolling could be warranted because a prisoner’s attorney

failed to file a petition despite repeatedly assuring his client that he was doing so. Id.

       Unacceptable though attorney Monroe’s mistake may be, it is a negligent

miscalculation of the sort that our precedents deem unworthy of equitable tolling. Unlike

the unscrupulous attorney in Fleming who intentionally deceived his client into believing

he was filing a petition, Monroe simply provided incorrect advice. Further, it is not clear

that Monroe’s error caused Phillips’ petition to be untimely: The only evidence Phillips

has provided of Monroe’s misadvice are emails from August 24 and December 15,

2010—after the AEDPA deadline had already expired. Thus, Phillips has not shown that

tolling based on his § 982a motion, nor would the single day in which that motion was
pending affect our conclusion as to timeliness.

                                             -4-
Monroe’s negligence impeded a timely filing. Accordingly, the district court correctly

concluded that Phillips is not entitled to equitable tolling.

                                              III

       We DENY a COA and DISMISS the appeal.

                                            Entered for the Court



                                            Carlos F. Lucero
                                            Circuit Judge




                                             -5-
