                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         August 17, 2005
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 JEFFERY ALLEN DAVIS,

        Petitioner - Appellant,
                                                          No. 05-5020
 vs.                                            (D.C. No. 04-CV-467-JHP-FHM)
                                                          (N.D. Okla.)
 RON WARD,

        Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Jeffrey Allen Davis, a state inmate appearing pro se,

seeks to appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254. The

district court dismissed the petition as time-barred pursuant to 28 U.S.C.

§ 2244(d) and not saved by equitable tolling.

       For this court to have jurisdiction over Mr. Davis’s appeal, a certificate of

appealability (“COA”) must be granted. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). To make such a showing, Mr. Davis must

demonstrate that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). For a denial based upon procedural grounds, Mr.

Davis must demonstrate “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.” Id.

      In 1993, Mr. Davis was convicted in a non-jury trial of second degree

murder, attempted robbery with a firearm, two counts of shooting with intent to

kill, and robbery with a firearm. He was sentenced on April 8, 1993, to fifty

years on each count, running consecutively. His conviction became final on April

18, 1993, ten days after entry of his judgment and sentence, as he did not perfect

a direct appeal, R. 2.5(A), Rules of the Court of Crim. App., Okla. Stat. Ann. tit.

22, ch. 18., App., and he has not been granted a direct appeal out of time.

Accordingly, he had until April 24, 1997, in which to file his federal habeas

petition. 28 U.S. C. § 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th

Cir. 1998). Mr. Davis did not file his federal habeas petition until June 9, 2004.

It is time-barred.

        Mr. Davis asserts that under Orange v. Calbone, 318 F.3d 1167, 1171

(10th Cir. 2003), the pertinent date for the running of the one-year limitation

period should be August 5, 2003, when he was granted a post-conviction appeal

out of time which would be part of the direct review process under 28 U.S.C.


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§ 2244(d)(1)(A). This argument is without merit. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed the denial of post-conviction relief in a post-

conviction appeal out-out-time on November 18, 2003. R. Doc. 5, Ex. D. Orange

involved a direct appeal out of time, not a post conviction appeal out of time.

Orange, 318 F.3d at 1171-72. The denial of post-conviction relief in these

circumstances in not a part of the direct review process.

      The district court’s conclusion that Mr. Davis’s multiple applications for

post-conviction relief did not serve to toll the limitations period is not reasonably

debatable, nor is its conclusion that he has not satisfied the grounds for equitable

tolling. R. Doc. 12. Mr. Davis’s new allegation on appeal that he filed a petition

for writ of mandamus with the OCCA in February 1996, complaining about delay,

does not change the equitable tolling analysis.

      We are satisfied that the district court’s resolution of the limitations issue is

not debatable or wrong. Accordingly, we DENY Mr. Davis’s application for a

COA and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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