                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 25, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 DAN IEL PAUL STARR,

              Petitioner-A ppellant,                     No. 06-5181
       v.                                              (N.D. Oklahoma)
 RON W ARD; Director, Oklahoma                 (D.C. No. 04-CV-0787-CVE-PJC)
 Department of Corrections,

              Respondent-Appellee.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Daniel Starr, proceeding pro se, seeks a certificate of appealability

(“COA”) to enable him to appeal the district court’s denial of the habeas petition

he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing

that an appeal may not be taken from the denial of a § 2254 habeas petition unless

the petitioner first obtains a COA). M r. Starr filed his original § 2254 petition on

October 12, 2004, and raised three claims all grouped within one proposition of

error. M r. Starr filed an amended petition on August 24, 2005, and added eight

more grounds. The district court determined M r. Starr’s claims asserted in the

amended petition were either procedurally barred or barred by the statute of

limitations, and denied the petition. For substantially the same reasons set forth
by the district court in its thorough opinion and order, we deny M r. Starr’s

application for a COA and dismiss this matter.

                                 I. BACKGROUND

      M r. Starr was convicted of rape by instrumentation, first-degree rape, and

unauthorized use of a motor vehicle, all after former conviction of two or more

felonies. The trial court sentenced M r. Starr to twenty years’ imprisonment on

each count, to be served consecutively. On April 24, 2003, the O klahoma Court

of Criminal Appeals (“OCCA”) affirmed his convictions on direct appeal.

      On July 6, 2004, M r. Starr filed an application for post-conviction relief.

The state district court denied this application on August 13, 2004. M r. Starr

filed an amended application for post-conviction relief on September 24, 2004,

which the state district court denied on October 6, 2004. M r. Starr sought to

appeal this application to the OCCA, but on December 17, 2004, the OCCA

declined jurisdiction and dismissed the appeal for improper filing, and for

untimeliness.

      M r. Starr filed his initial § 2254 on October 12, 2004 and filed an amended

petition on August 24, 2005. The district court denied M r. Starr’s petition and

his application for a COA.




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                                    II. DISCUSSION

         In order to obtain a COA, M r. Starr must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Starr may make

this showing by demonstrating that “jurists of reason could disagree with the

district court’s resolution of the case or that the issues presented were adequate to

deserve encouragement to proceed further.” M iller-El v. Cockrell, 537 U.S. 322,

336 (2003). “[A] claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id. at 338.

         Under the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA ”)

one-year statute of limitations, M r. Starr had until July 23, 2004 to file a petition

for a writ of habeas corpus in federal district court. § 2244(d)(1)(A). W ithin the

one-year period, on July 6, 2004, seventeen days before the deadline, M r. Starr

filed his first application for post-conviction relief in state court, tolling the

AEDPA deadline. The state district court denied relief on August 13, 2004, and,

because M r. Starr did file a post-conviction appeal, the clock began to run again

on September 12, 2004. Gibson v. Klinger, 232 F.3d 799, 803-04 (10th Cir.

2000).

         At this point, M r. Starr had until September 29, 2004 to timely file his

federal habeas corpus petition. On September 24, 2004, M r. Starr filed his

amended supplemental post-conviction petition in state court. On October 6,


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2004, the state district court denied relief. Citing Rule 5.2(C)(2) of the Oklahoma

Court of Criminal Appeals, the OCCA declined jurisdiction because the appeal

was not properly filed. The OCCA noted that M r. Starr had failed to include a

copy of the district court order denying his application for post-conviction relief

and that the appeal was also untimely. As a result of the OCCA’s jurisdictional

ruling, the AEDPA clock began to run again thirty days after entry of the state

district court’s order that denied relief, or on November 5, 2004. M r. Starr’s

deadline for filing a federal habeas corpus petition was then November 10, 2004.

M r. Starr filed his original petition on October 12, 2004.

      For substantially the same reasons set forth in the federal district court’s

order, we conclude that M r. Starr is not entitled to a COA. As to M r. Starr’s

amended petition, which he filed more than nine months after expiration of the

one-year limitations period, we note that he has not challenged the federal district

court’s conclusion the claims raised there are time-barred. W e also agree that the

amended petition raised eight additional claims that were not tied to a common

core of operative facts applicable to the claims raised in his original petition. A s

a result, his amended petition did not relate back to the original petition. See

M ayle v. Felix, 125 S. Ct. 2562, 2566 (2005). M oreover, there was no basis for

statutory or equitable tolling. These claims are thus barred by AEDPA ’s one-year

time limit. Id.




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      M r. Starr’s original petition, filed within the AEDPA statute of limitations

on October 12, 2004, raised claims involving ineffective assistance of appellate

counsel, prosecutorial misconduct, and juror misconduct. Because M r. Starr did

not appeal from the state district court’s denial of his original post-conviction

application, his appeal to the OCCA related only to his amended application. The

appeal was procedurally defective causing the OCCA to dismiss it without

reaching the merits and M r. Starr cannot “demonstrate that cause for the default

and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” See Coleman v. Thom pson, 501 U.S. 722, 750 (1991).

The district court correctly determined that these claims were procedurally barred.

                                 III. CONCLUSION

      Based on our review of the record on appeal, the district court’s order, and

M r. Starr’s submissions to this court, we are not persuaded jurists of reason would

disagree with the district court’s disposition of his petition. Accordingly, we

DENY his request for a COA and DISM ISS this matter.



                                 Entered for the Court,
                                 ELISABETH A. SHUM AKER, Clerk


                                 By:
                                   Deputy Clerk



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