                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          April 14, 2006
                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court

 FREDRICK T. HEINKEN,

        Petitioner - Appellant,
                                                         No. 06-6003
 vs.                                               (D.C. No. 05-CV-812-C)
                                                         (W.D. Okla.)
 HASKELL HIGGINS, Warden;
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

        Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


       Fredrick T. Heinken, a state inmate appearing pro se, seeks a certificate of

appealability (COA) so that he may appeal from the district court’s denial of his

habeas petition filed pursuant to 28 U.S.C. § 2254. Because Mr. Heinken has not

made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and

dismiss the appeal.

       On December 16, 2003, Mr. Heinken was convicted, upon a guilty plea, of

first degree manslaughter (Count 1); causing an accident resulting in great bodily
injury (Count 2); leaving the scene of an accident resulting in death (Count 3);

driving while privilege revoked (Count 4); and failure to carry valid security

verification (Count 5), all after prior felony conviction. He was sentenced to ten

years imprisonment on Counts 1 and 3, five years imprisonment on Count 2, one

year imprisonment on Count 4, and a $50.00 fine on Count 5, all terms to run

concurrently. He did not apply to withdraw his plea and filed no direct appeal.

On June 2, 2004, Mr. Heinken filed a request for sentence modification in state

district court pursuant to Okla. Stat. tit. 22, § 982a, which was denied on August

16, 2004. On November 23, 2004, Mr. Heinken returned to state district court,

filing a petition for post-conviction relief pursuant to Okla. Stat. tit. 22, § 1081.

That court denied relief on January 28, 2005, and the Oklahoma Court of Criminal

Appeals (OCCA) affirmed that denial on May 3, 2005.

      On July 8, 2005, Mr. Heinken filed his federal habeas petition. 1 In it, he

claimed that—counter to the mandates of due process—he did not voluntarily and

intelligently enter into his guilty plea because (1) the trial court failed to inform



      1
         As the magistrate judge recognized, the petition was file-stamped on July
18, 2005. However, the petition contains a verification dated July 8, 2005, stating
that the petition was placed in the prison mailing system on that date. The
petition also indicates that the document was signed on July 5, 2005. The petition
is deemed “filed” when the petitioner deposits it in the prison mail system. See
Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998). But even liberally
construing the petition to be filed on July 5, 2005, the analysis below is
unaffected.

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him of all the elements of first degree manslaughter, see R. Doc. 2 at 3-4, (2) his

plea counsel and the district attorney misrepresented the evidentiary showing

required by the state to fulfill those elements, id. at 8, (3) and other “extinuating

[sic] circumstances,” such as his hearing and sight limitations that inhibited his

understanding of the plea proceedings, id. at 4. In his habeas petition, Mr.

Heinken also addressed the merits of his underlying claims, i.e., the ineffective

assistance of his plea counsel and the insufficiency of the evidence supporting his

first degree manslaughter conviction. See id. at 1-2. He forwards the same

substantive arguments here. See Aplt. Br. at 16.

      The magistrate’s report and recommendation concluded that Mr. Heinken’s

substantive challenges were time-barred given the one-year limitation period in 28

U.S.C. § 2244(d)(1)(A). The district court adopted the report and

recommendation, overruling Mr. Heinken’s objections. Where the district court

dismisses a petition on procedural grounds, a COA requires the inmate to

demonstrate that it is reasonably debatable whether (1) the petition states a valid

claim of the denial of a constitutional right, and (2) the district court’s procedural

ruling is correct. Slack, 529 U.S. at 484.

      The district court’s conclusion that Mr. Heinken’s claims are time-barred is

not reasonably debatable. Federal law provides that a “1-year period of limitation

shall apply to an application for a writ of habeas corpus by a person in custody


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pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This

limitation period begins on “the date on which the judgment became final by . . .

the expiration of time for seeking [direct] review.” 28 U.S.C. § 2244(d)(1)(A).

Because Mr. Heinken did not seek to withdraw his guilty plea or seek a direct

appeal, his conviction became final on December 26, 2003, ten days after entry of

his plea. See Okla. Crim. App. R. 4.2(A), Okla. Stat. tit. 22, ch. 18, app. The

one-year limitations period was tolled from November 23, 2004 to May 3, 2005

during the pendency of his petition for post-conviction relief. 2 But it resumed on

May 3, 2005 when the OCCA affirmed the district court’s denial of relief.

Accordingly, Mr. Heinken had until June 5, 2005, to file his federal habeas

petition. As noted, his petition was not filed until July 8.

      The one-year limitations period is not jurisdictional and is subject to

equitable tolling in appropriate cases. Miller v. Marr, 141 F.3d 976, 978 (10th

Cir. 1998). Equitable tolling of the limitations period is only appropriate in “rare



      2
        We acknowledge that Mr. Heinken also sought judicial review under
Okla. Stat. tit. 22, § 982a, which allows the state court imposing the sentence to
modify it within twelve months after imposition. But as the magistrate judge
properly noted, such motions seek discretionary review, their denial is not
appealable, and they therefore do not constitute post-conviction proceedings for
purposes of tolling the one-year limitations period. See, e.g., Bridges v. Johnson,
284 F.3d 1201, 1203-04 (11th Cir. 2002) (finding petitioner’s application before
state sentence review panel seeking discretionary and non-appealable review did
not constitute post-conviction proceedings for the purposes of tolling the one-year
limitations period).

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and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000) (quotation omitted). Moreover, “[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). Mr. Heinken’s general claims of

lack of access to either an adequate law library or a person trained in law do not

suffice to establish equitable tolling. His federal habeas petition was therefore

time-barred.

      We GRANT IFP status, DENY a COA, and DISMISS this appeal.



                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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