                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 11, 2006
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 A LA N KIN G SLEY ,

          Petitioner - A ppellant,
                                                       No. 06-3029
 v.                                             (D.C. No. 05-CV-3010-SAC)
                                                         (D . Kan.)
 DAVID R. M CKUNE, W arden,
 Lansing Correctional Facility;
 A TTO RN EY G EN ER AL O F THE
 STA TE O F KANSAS,

          Respondents - Appellees.



                                ORDER
                 DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Alan W . Kingsley, 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. See 28 U.S.C. § 2253(c)(2).

Because M r. Kingley has failed to demonstrate that it is reasonably debatable

whether the district court’s procedural ruling dismissing his claim is correct,

Slack v. M cDaniel, 529 U.S. 473, 484 (2000), we deny a COA and dismiss the

appeal.

      In fall 1991, a jury convicted M r. Kingsley of first-degree murder,
aggravated robbery, aggravated arson, and forgery in Sedgwick County District

Court, Kansas. See State v. Kingsley, 851 P.2d 370, 372-74 (Kan. 1993). He was

sentenced to life without parole for 40 years, 15 years to life, 15 years to life, and

1 to 5 years, respectively. Id. at 372. After successfully challenging his

conviction for aggravated arson, M r. Kinglsey was re-sentenced on April 27,

1993, for the lesser included offense of arson. On February 21, 2002, he filed an

application for post-conviction relief in state court, which was denied without an

evidentiary hearing in June 2002. That denial was affirmed by the K ansas C ourt

of Appeals on April 2, 2004, and the Kansas Supreme Court on M ay 25, 2004.

      On January 11, 2005, M r. Kingsley filed his federal habeas petition. See R.

Doc. 1. On November 17, 2005, without addressing M r. Kingsley’s constitutional

claims, the district court dismissed his habeas petition as time-barred by the one-

year limitations period in 28 U.S.C. § 2244(d)(1). R. Doc. 25. M r. Kingsley filed

several motions for reconsideration, which the district court denied.

      W hen the district court denies a habeas petition on procedural grounds and

fails to address the prisoner’s constitutional claims, we may issue a COA only if

the prisoner demonstrates 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. On appeal, M r.

Kingsley argues the merits of his claims and that the district court erred in

determining that his action is barred by limitations.

                                          -2-
      The district court’s conclusion that M r. Kingsley’s claims are time-barred

is not reasonably debatable. Title 28 U.S.C. § 2244(d)(1), enacted on April 24,

1996, provides that a “1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to the judgment of a State

court.” This limitation period usually commences on “the date on which the

judgment became final by . . . the expiration of the time for seeking [direct]

review.” 28 U.S.C. §2244(d)(1)(A). However, a state prisoner whose conviction

became final on or before April 24, 1996 must file his § 2254 petition on or

before A pril 24, 1997. See United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir.

2003); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Because M r.

Kingsley’s conviction became final before April 24, 1996, he had until April 24,

1997 to file his § 2254 petition. He did not file his § 2254 petition until January

11, 2005, well past the deadline. 1

      The running of the limitations period would be tolled or suspended during

the pendency of any post-conviction or other collateral proceeding filed during

the one-year limitations period. See Hoggro, 150 F.3d at 1226. But a petition for



      1
         M r. Kingsley makes much out of the State’s failure to answer his petition
within the 20-day period provided by the district court. He contends that under
local rules such failure should have resulted in his habeas petition being “granted
as uncontested.” Aplt. Br. at 3e. M r. Kingsley’s contention is without
consequence. Regardless of the State’s response, timely or otherwise, the district
court retained the authority to dismiss his petition as untimely. See Day v.
M cDonough, 126 S. Ct. 1675, 1684 (2006); Dulworth v. Evans, 442 F.3d 1265,
1266 (10th Cir. 2006).

                                         -3-
post-conviction relief filed in state court after the limitations period has expired

no longer serves to toll it. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th

Cir. 2001). Thus, M r. Kingsley’s February 21, 2002 application for post-

conviction relief is of no consequence. And although the limitations period for

§ 2254 petitions is subject to equitable tolling in extraordinary circumstances,

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000), M r. Kingsley’s conclusory

claims of actual innocence do not support tolling here.

      M r. Kingsley’s remaining arguments may be handled quickly. He contends

that this court should dismiss his petition without prejudice because he filed a

collateral proceeding in state court that is still pending. That is, he maintains his

habeas petition here was prematurely filed. As noted, because the one-year

limitations period expired on April 24, 1997, any subsequent state collateral

proceedings have no bearing on whether his habeas petition is untimely.

      M r. Kingsley also seeks return of the $255.00 filing fee he submitted to this

court in connection with his interlocutory appeal, which was dismissed for lack of

appellate jurisdiction on June 27, 2005. He maintains that “if the court does not

have jurisdiction to hear the appeal, it does not have jurisdiction to collect the

funds for the appeal.” A plt. Br. at 3f. This court has jurisdiction to ascertain its

jurisdiction, Schroeck v. Gonzales, 429 F.3d 947, 950 (10th Cir. 2005), and to

retain the attendant filing fee.




                                          -4-
W e DENY IFP status, DENY a COA, and DISM ISS this appeal.



                             Entered for the Court



                             Paul J. Kelly, Jr.
                             Circuit Judge




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