                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         December 1, 2015
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
LEWIS EDWARD MURRELL,

      Petitioner - Appellant,

v.                                                        No. 15-6144
                                                   (D.C. No. 5:14-CV-00863-C)
JANET DOWLING,                                            (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Lewis Murrell seeks a certificate of appealability (“COA”) to challenge the

dismissal of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss the appeal.

                                           I

      Murrell pled guilty to aggravated assault and battery in Oklahoma state court

and was sentenced to 25 years’ imprisonment. His judgment of conviction was

entered on April 4, 2012. More than one year later, Murrell filed multiple

applications for state post-conviction relief. The trial court denied the motions and

the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed.


      *
        This order is not binding precedent, except under the doctrines of law of the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.
      On August 12, 2014, Murrell filed a § 2254 petition asserting ineffective

assistance of counsel. A magistrate recommended that the petition be dismissed as

untimely. The district court adopted the magistrate judge’s recommendation and

denied Murrell a COA. Murrell now seeks a COA from this court.

                                            II

      Murrell cannot appeal the dismissal of his § 2254 petition without a COA.

§ 2253(c)(1)(A). When a habeas petition is disposed of on procedural grounds, we

will issue a COA if “the prisoner shows, at least, 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).

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

a habeas petitioner generally has one year from the date his conviction becomes final

to file in federal court. § 2244(d)(1)(A). Murrell’s conviction and sentence were

entered on April 4, 2012. Under Oklahoma law, he had ten days to move to withdraw

his plea. See Clayton v. Jones, 700 F.3d 435, 441 (10th Cir. 2012). Because Murrell

did not attempt to withdraw his plea within that deadline, his conviction became final

on April 16, 2012.1 Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). Murrell

filed his first application for state post-conviction relief on April 10, 2013, with


      1
       The actual ten-day period for Murrell to file a motion to withdraw ended on a
Saturday. Under Oklahoma law, the deadline was thus extended to the following
Monday. See Okla. Stat. tit. 12, § 2006(A)(1).

                                            2
seven days remaining in the AEDPA limitations period. The OCCA affirmed the

denial of post-conviction relief on April 25, 2014. Tolling the period during which

his state applications were pending, see § 2244(d)(2), Murrell had until May 2, 2014

to file his habeas petition. His August 12, 2014 petition was thus untimely.

       Construing his pro se pleadings liberally, see Smith v. Plati, 258 F.3d 1167,

1174 (10th Cir. 2001), Murrell argues that he is entitled to equitable tolling because

his attorney failed to advise him that he could file a motion to withdraw his guilty

plea. Although “egregious misconduct” by counsel may warrant equitable tolling,

allegations of “mere negligence” by an attorney in pursuing state post-conviction

relief are insufficient. Fleming v. Evans, 481 F.3d 1249, 1256-57 (10th Cir. 2007).

The circumstances alleged are not egregious, let alone misconduct. Because Murrell

does not allege any “extraordinary circumstances beyond his control” that prevented

him from timely filing, id. at 1254 (quotation omitted), he is not entitled to equitable

tolling.

                                           III

       Because reasonable jurists cannot debate the propriety of the district court’s

ruling, we DENY a COA. We GRANT Murrell’s petition to proceed in forma

pauperis.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge


                                            3
