                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        July 20, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



 DAVID A. W ILLIAM S,

          Petitioner-A ppellant,
 v.
                                                        No. 06-3415
                                                 (D.C. No. 01-CV-3203-SAC)
 STA TE O F KANSAS,
                                                          (D . Kan.)
 A TTO RN EY G EN ER AL O F THE
 STA TE O F KANSAS,

          Respondents-Appellees.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Petitioner-Appellant David A. W illiams, a Kansas state prisoner appearing

pro se, seeks a certificate of appealability (“COA”) in order to challenge the

district court’s dismissal of his habeas petition as time-barred. See 28 U.S.C.

§ 2253 (c)(1) (requiring COA before prisoner may appeal the dismissal of a

habeas petition). W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).


      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Reviewing M r. W illiams’s filings liberally, 1 we hold that no reasonable jurist

could conclude that the district court’s dismissal on procedural grounds was

incorrect. See Slack v. M cDaniel, 529 U.S. 473, 484 (2000). Accordingly, we

D EN Y M r. W illiams’s application for a COA and DISM ISS his appeal.

                                I. BACKGROUND

      On M ay 23, 1994, M r. W illiams pled nolo contendere to one count of

premeditated murder, three counts of rape, three counts of criminal sodomy, four

counts of aggravated kidnapping, seven counts of kidnapping, one count of

burglary, and one count of criminal possession of a firearm. M r. W illiams was

sentenced to life imprisonment without the possibility of parole for forty years.

On direct appeal, the Kansas Supreme Court affirmed M r. W illiams’s conviction

and sentence. State v. William s, 913 P.2d 587, 588-89 (Kan. 1996). The United

States Supreme Court denied certiorari on October 7, 1996. Williams v. Kansas,

519 U.S. 829 (1996).

      On July 16, 1999, M r. W illiams filed for state post-conviction relief under

Kan. Stat. Ann. § 60-1507. The district court denied relief and that decision was

affirmed by the Kansas Court of Appeals. Williams v. State, No. 84, 644 (Kan.

Ct. App. M ar. 2, 2001) (unpublished opinion). On M ay 2, 2001, the Kansas

Supreme Court denied review.

      1
           Because M r. W illiams is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
United States Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

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      On M ay 21, 2001, M r. W illiams filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 alleging that (1) he was denied effective assistance of

counsel; (2) the trial court lacked jurisdiction to impose the sentence; and (3) his

plea was not knowing and voluntary. After the magistrate judge recommended

that the petition be dismissed as barred by the statute of limitations, M r. W illiams

objected, claiming that his motion for state post-conviction relief tolled the

statute-of-limitations period. On January 22, 2002, the district court denied M r.

W illiams’s petition.

      Four years later, M r. W illiams filed a motion for review, which was denied.

The district court denied M r. W illiams a CO A but granted him leave to proceed in

form a pauperis.

                                 II. D ISC USSIO N

      M r. W illiams’s petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, issuance of a COA is

a jurisdictional prerequisite to appealing the dismissal of a habeas petition. 28

U.S.C. § 2253(c)(1); M iller-El v.Cockrell, 537 U.S. 322, 335-36 (2003). In order

to obtain a COA, M r. W illiams must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has clarified

that where, as here, the district court denies a habeas petition on procedural

grounds without reaching the merits of the underlying constitutional claims, a

petitioner must show that reasonable jurists would find debatable both (1)

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whether the petition states a valid claim of the denial of a constitutional right,

and (2) w hether the district court was correct in its procedural ruling. Slack, 529

U.S. at 484. The Supreme Court also has instructed courts to resolve the

procedural issue first. Id. at 485 (citing Ashwander v. TVA, 297 U.S. 288, 347

(1936)).

      The procedural bar in this case is the AEDPA ’s one-year statute of

limitations w hich begins on the latest of (1) the date the judgment becomes final,

(2) the date on which an impediment created by the state in violation of the

Constitution is removed, or (3) the date on which the factual predicate of the

claims presented could have been discovered through due diligence. See 28

U.S.C. § 2244(d)(1)(A)-(B), (D). M r. W illiams’s conviction became final on

October 7, 1996, when the Supreme Court denied certiorari. Thus, M r. W illiams

had until O ctober 7, 1997, to collaterally challenge his conviction and sentence.

However, M r. W illiams did not file his § 2254 habeas petition until M ay 21, 2006

–– well after the one-year limitations period had expired.

      M r. W illiams is not eligible for statutory tolling with respect to the period

during which his state post-conviction claims were pending. Although “[t]he time

during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation,” 28 U.S.C. § 2244(d)(2), M r.

W illiam s did not seek post-conviction relief until July 16, 1999 – almost two

                                          -4-
years after the end of the limitations period. A collateral petition filed in state

court after the limitations period has expired does not serve to toll the statute of

limitations. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

       Consequently, the district court correctly concluded that M r. W illiams’s

habeas petition is time-barred. Accordingly, we DENY his application for a COA

and DISM ISS his appeal. Slack, 529 U.S. at 484 (“W here a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.”).



                                        Entered for the Court

                                        Jerome A. Holmes
                                        Circuit Judge




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