                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          OCT 26 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 JOHNNIE LEE GETTENS,

           Petitioner - Appellant,
 vs.                                                    No. 01-6158
                                                  (D.C. No. CIV-01-319-A)
 GLYNN BOOHER, Warden,                                  (W.D. Okla.)

           Respondent - Appellee.


                               ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Mr. Gettens, an inmate appearing pro se, seeks a certificate of appealability

(“COA”) to appeal from the district court's denial of his habeas petition filed

pursuant to 28 U.S.C. § 2254. Mr. Gettens was convicted in Oklahoma state court

of trafficking in illegal drugs and was sentenced to twenty years’ imprisonment.

In his federal habeas petition, Mr. Gettens claims two grounds for relief: (1) the


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         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.
trial court lacked jurisdiction to enhance his sentence under Okla. Stat. Ann. tit.

21, § 51; and (2) alleged inadequacies in the Oklahoma state post-conviction

review process violated his right to due process.

      The matter was referred to a magistrate judge, who recommended that the

petition be dismissed as time barred under the one-year limitation provision of

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §

2244(d)(1). The district court adopted the magistrate's report of findings and

recommendations in its entirety and dismissed the petition. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(c).

      Mr. Gettens entered a plea of guilty on August 14, 1997. Under Rule 4.2 of

the Rules of the Oklahoma Court of Criminal Appeals, Mr. Gettens had ten days

from August 14, 1997, to file an application to withdraw his guilty plea. Because

Mr. Gettens did not file an application to withdraw the plea or otherwise appeal

the conviction, his conviction became final, and the AEDPA one-year time limit

began running, on or about August 24, 1997. The due date for Mr. Gettens’s

habeas petition was August 24, 1998. As Mr. Gettens filed his petition on

February 20, 2001, his first ground for relief is barred under § 2244(d)(1). Mr.

Gettens is not entitled to toll the period during the time he spent seeking state

post-conviction relief because his state post-conviction petition was filed on

October 14, 1998, two months after the federal limitations period had run.


                                         -2-
      The AEDPA’s one-year period of limitation is subject to equitable tolling

in extraordinary circumstances. Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998). The AEDPA’s time limitations may be equitably tolled “when a prisoner

is actually innocent, when an adversary’s conduct – or other uncontrollable

circumstances – prevents a prisoner from timely filing, or when a prisoner

actively pursues judicial remedies but files a defective pleading during the

statutory period.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Mr.

Gettens’s petition describes none of these, instead alleging only the improper

enhancement of his sentence. Mr. Gettens also fails to allege that he diligently

pursued this claim, as required for equitable tolling. Miller, 141 F.3d at 978.

Instead, Mr. Gettens filed this action more than two years after the statute of

limitations expired, a demonstration of negligence unexplained by Mr. Gettens.

Mr. Gettens’s claim that his sentence was wrongfully enhanced does not qualify

for equitable tolling and is dismissed as untimely.

      Mr. Gettens also claims that his due process rights were violated by alleged

inadequacies in the Oklahoma state post-conviction review process. Mr. Gettens

alleges that the District Court of Comanche County erred in not allowing him to

rebut the State’s response to his post-conviction application, and that both the

district court and the state appellate court erred in applying a state procedural bar

to his application for post-conviction relief. Attempts by a habeas petitioner to


                                         -3-
challenge “the Oklahoma post-conviction procedures on their face and as applied

to him fail to state a federal constitutional claim cognizable in a federal habeas

proceeding.” Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).

      We DENY the motion to proceed in forma pauperis, DENY a certificate of

appealability, and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         -4-
