                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 26, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 D EA N D RE FR AN K LIN SM ITH,

                 Petitioner - A ppellant,               No. 06-5047
          v.                                          N. D. Oklahoma
 C HA RLES R AY ,                            (D.C. No. 05-CV-0151-CVE-PJC)

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Deandre Franklin Smith was convicted in Oklahoma state court of several

criminal offenses and sentenced to 25 years’ imprisonment. He appealed his

conviction to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed

his conviction and sentence on August 25, 2003. M r. Smith apparently did not

seek certiorari review in the United States Supreme Court. On August 2, 2004,



      *
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
M r. Smith filed an application for postconviction relief in state district court,

which denied relief on September 8, 2004. He appealed to the OCCA, which

declined jurisdiction and dismissed the appeal as untimely on November 8, 2004.

      On M arch 18, 2005, M r. Smith filed a habeas application under 28 U.S.C.

§ 2254 in the United States District Court for the Northern District of Oklahoma.

The district court dismissed his application, ruling that M r. Smith had not

complied w ith the one-year statute of limitations established by the A ntiterrorism

and Effective Death Penalty Act of 1996 (AEDPA ), 28 U.S.C. § 2244(d), and that

he was not entitled to equitable tolling of the limitations period. The district

court also denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)

(requiring COA). M r. Smith now seeks a COA from this court, which we deny.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

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substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “W here a plain procedural bar is present and

the district court is correct to invoke it to dispose of a case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

      On appeal M r. Smith does not challenge the district court’s determination

that he had failed to file his § 2254 application within AEDPA ’s one-year

limitations period. He does, however, challenge the district court’s ruling on

three other grounds.

      First, M r. Smith argues that he was improperly denied the six hours of

weekly access to legal materials to w hich he claims to be entitled under Lewis v.

Casey, 518 U .S. 343 (1996). But he did not raise this claim in district court, so

we will not consider it. See Simmat v. U. S. Bureau of Prisons, 413 F.3d 1225,

1240 (10th Cir. 2005) (we will not address issues raised for the first time on

appeal).

      Second, M r. Smith argues that inadequacies in the state postconviction

proceedings resulted in a denial of due process. Again, however, he did not raise

this claim in district court, so we will not consider it. See id. In any event, he

fails to explain how these inadequacies caused his federal application under

§ 2254 to be untimely.

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      Third, he argues that the limitations period should be equitably tolled

because “during his post-conviction appeal he had only a 30-day window to

perfect an appeal, at which time he was subject to suffer unfor[e]seeable facility

lock-downs, shake-downs, library closings and equipment failure.” Aplt. Br. at

16. He appears to be arguing that he was not at fault for filing an untimely

postconviction appeal to the OCCA. This untimeliness reduced the amount of

time during which the limitations period was statutorily tolled by his state

postconviction proceedings. The district court rejected M r. Smith’s argument that

the limitations period should be tolled during the pendency of his postconviction

proceedings, from August 2 until November 8, 2004, the date the OCCA

dismissed his postconviction appeal, because the untimely appeal was not

“properly filed” as required by AEDPA, 28 U.S.C. § 2244(d)(2); see Hoggro v.

Boone, 150 F.3d 1223, 1226 n.4 (10th Cir. 1998) (no tolling of the “time during

which [the defendant] appealed the denial of his application for post-conviction

relief because that appeal was untimely. Section 2244(d)(2) requires a court to

subtract time only for the period when the petitioner’s ‘properly filed’ post-

conviction application is being pursued.”). Instead, the court ruled that the

limitations period was tolled only from August 2 until October 8, 2004, thirty

days after the state district court denied postconviction relief. But even if we

exercised equitable powers to treat M r. Smith’s appeal to the OCCA as timely –

thus crediting him with tolling until the OCCA dismissed his appeal on November

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8, 2004, rather than until only October 8, 2004— his § 2254 application would

still be untimely. The district court calculated that AEDPA ’s limitations period

expired on January 29, 2005. W ith the addition of 31 days (O ctober 8 to

November 8), the AEDPA limitations period would have expired on M arch 1,

2005. M r. Smith’s § 2254 application was received for filing by the district court

on M arch 18, 2005. The earliest date one could attribute to the application is the

date entered for the “Declaration Under Penalty of Perjury” at the end of the

application form, which is M arch 4, 2005. Thus, the application was at least three

days late even if M r. Smith’s state postconviction appeal w ere considered timely.

No reasonable jurist could dispute the district court’s ruling that M r. Smith is not

entitled to relief on the ground of equitable tolling.

      W e DENY a COA and DISM ISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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