                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                        UNITED STATES COURT OF APPEALS December 4, 2012
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 TIMOTHY W. CLAY,
                 Petitioner–Appellant,                          No. 12-6182
           v.                                          (D.C. No. 5:11-CV-01108-C)
 JUSTIN JONES, Director,                                        (W.D. Okla.)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition as time-barred. In 2005,

Petitioner was convicted of assault with a dangerous weapon after two or more

convictions, and this conviction was affirmed by the Oklahoma Court of Criminal

Appeals in March 2007. In dismissing the petition as time-barred, the district court

concluded that the limitations period expired in October 2008, after a statutory tolling

period for Petitioner’s timely state post-conviction application. However, this federal

habeas petition was not filed until the fall of 2011, well after the limitations period had



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
expired, and the district court saw no basis for equitable tolling.

       In his request for a certificate of appealability, Petitioner mainly raises arguments

going to the merits of his federal habeas petition. On the timeliness issue, he does not

contest the district court’s calculation of the limitations period, but only suggests he

should receive equitable tolling because: (1) he attempted to file federal habeas petitions

in January and June of 2008, but both petitions were dismissed without prejudice for

failure to exhaust state court remedies; and (2) he did not understand the tolling and

exhaustion issues because he has no legal training or access to legal assistance. Neither

argument persuades us the district court erred in declining to equitably toll the limitations

period. On the first point, even if the limitations period were to be equitably tolled for the

periods during which Petitioner’s timely filed federal petitions were pending, see Hall v.

Scott, 292 F.3d 1264, 1267-68 (10th Cir. 2002), this would toll only a few months of the

almost three-year period of delay. On the second point, “it is well established that

ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse

prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal

quotation marks omitted). Petitioner’s arguments are insufficient to demonstrate

“extraordinary circumstances” entitling him to equitable tolling. See Yang v. Archuleta,

525 F.3d 925, 930 (10th Cir. 2008).

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of the

habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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We therefore do not consider Petitioner’s arguments on the merits of his claims. See id.

For substantially the same reasons given by the district court, we DENY Petitioner’s

request for a certificate of appealability and DISMISS the appeal. Petitioner’s motion to

proceed in forma pauperis on appeal is GRANTED.


                                                 ENTERED FOR THE COURT



                                                 Monroe G. McKay
                                                 Circuit Judge




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