                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                February 2, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT


 WILLIAM D. JONES,

       Petitioner - Appellant,
                                                        No. 09-6193
 v.                                              (D.C. No. 09-CV-00102-C)
                                                        (W.D. Okla.)
 WALTER DINWIDDIE,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner-Appellant William D. Jones, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s judgment dismissing his petition for a writ of habeas corpus as untimely.

To obtain a COA, Mr. Jones must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S.

473, 483-84 (2000). Mr. Jones has not made the requisite showing, and therefore

we deny a COA and dismiss the appeal.

      Mr. Jones was convicted of two counts of first-degree rape, one count of

second-degree rape and one count of forcible sodomy and sentenced to

consecutive 100 year terms on each count. The judgment and sentence was
affirmed on direct appeal on July 28, 2004, and became final 90 days thereafter,

on October 26, 2004. See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999).

Mr. Jones filed his federal habeas petition on December 20, 2008, well after the

one-year limitation period in 28 U.S.C. § 2244(d)(1).

      The district court adopted the thorough report and recommendation of the

magistrate judge, which concluded that Mr. Jones’s petition was untimely, and

was not saved by statutory or equitable tolling. On appeal, Mr. Jones renews his

arguments, including the merits, and contends that he is actually innocent and that

the state must show a lack of diligence and prejudice before it can prevail on a

laches defense citing Costello v. United States, 365 U.S. 265, 282 (1961). As to

the laches argument, we doubt that laches applies in this context given a statutory

limitation period which Mr. Jones cannot meet and the district court’s rejection of

equitable tolling. See United States v. Marolf, 173 F.3d 1213, 1217-18 (9th Cir.

1999). That said, we do not think that the disposition on limitations grounds is

reasonably debatable. See Slack, 529 U.S. at 483-84.

      We DENY a COA, IFP status, and DISMISS the appeal.

                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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