                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          April 24, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court

 LARRY WASHINGTON,

          Petitioner-Appellant,
 v.                                                      No. 05-6403
 RON WARD, Warden, Oklahoma                      (D.C. No. CIV-05-0688-HE)
 Department of Corrections, and                      (W. D. Oklahoma)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents-Appellees.




                                      ORDER *


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



      Petitioner Larry Washington, an Oklahoma state prisoner appearing pro se,

seeks a certificate of appealability (COA) to appeal the district court’s order

dismissing his 28 U.S.C. § 2254 habeas corpus petition. The district court

followed the magistrate’s report and recommendation, which concluded that

Washington had failed to file his petition within the governing one-year statute of

limitations, see 28 U.S.C. § 2244(d)(1), and that he was not entitled to equitable


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
tolling of the limitations period. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291, deny a COA, and dismiss the appeal.

      Where, as here, a district court denies a habeas petition on procedural

grounds without reaching the underlying constitutional claims, a COA should

issue if the petitioner demonstrates “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, 478 (2000).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), the one-year period of limitations generally begins running from “the

date on which the judgment became final by the conclusion of direct review or the

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

one-year limitations period is tolled while a defendant pursues state post-

conviction relief, see 28 U.S.C. § 2244(d)(2), and we have held that the one-year

limitations period “may be subject to equitable tolling.” Miller v. Marr, 141 F.3d

976, 978 (10th Cir. 1998). But it is well established that equitable tolling of

§ 2244(d)(1)’s one-year statute of limitations is available “only in rare and

exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003).

For instance, “equitable tolling would be appropriate . . . when a prisoner is

actually innocent” or “when an adversary’s conduct–or other uncontrollable


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circumstances–prevents a prisoner from timely filing.” Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000).

      On April 17, 2001, in the District Court of Oklahoma County, Washington

pled guilty to possession of a controlled dangerous substance (cocaine) after

former conviction of a felony. Washington received an eight-year suspended

sentence. On June 11, 2002, Washington pled guilty to the State’s application to

revoke his suspended sentence. That same day, he also entered a plea of guilty

for attempted robbery in the first degree after former conviction of a felony. The

Oklahoma state court sentenced Washington to three years of imprisonment for

his possession of cocaine conviction, to be served consecutively to his twelve-

year sentence for armed robbery. The court also imposed a five-year suspended

sentence for Washington’s possession of cocain conviction, to be served

consecutively to his sentence for armed robbery. Because Washington did not

seek to withdraw his guilty plea or file a direct appeal, Washington’s conviction

for possession of cocaine became final on June 21, 2002, ten days after the entry

of judgment and sentence. See Okla. Ct. Crim. App. R. 4.2(A); Okla. Stat. tit. 22.

§ 1051. As a result, Washington had until June 21, 2003, to timely file a federal

habeas action. Washington, however, filed his federal habeas corpus petition on

June 17, 2005. Although the record reflects that Washington filed an application

for post-conviction relief in the Oklahoma state courts on December 21, 2004,


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this was well after the one-year limitations period had expired. Thus, the

pendency of that state post-conviction proceeding could not have served to toll

the federal limitations period. See Fisher v. Gibson, 262 F.3d 1135, 1142-43

(10th Cir. 2001). After reviewing the record, we conclude that the district court

correctly dismissed Washington’s habeas petition as untimely. We also agree

with the district court that Washington failed to assert any grounds that warrant

equitable tolling.

      The application for a COA is DENIED and the appeal is DISMISSED.

Washington’s motion to proceed on appeal in forma pauperis is DENIED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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