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

                                                                     September 5, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                  TENTH CIRCUIT                         Clerk of Court



 JEREM IAH D EL B OU ZID EN ,

       Petitioner - A ppellant,
                                                         No. 06-6095
 v.
                                                    (D.C. No. 06-CV-16-C)
                                                         (W .D. Okla.)
 JUSTIN JONES, Director,

       Respondent - Appellee.



                     OR DER DENYING A CERTIFICATE
                           OF APPEALABILITY


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


      Jeremiah D el Bouziden, a state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we D EN Y a COA and DISM ISS.

      On July 24, 2002, Bouziden was convicted of eight drug-related charges

and possession of a firearm while in the commission of a felony. He did not

appeal his conviction, but moved to withdraw his guilty plea six days after he was

sentenced. The Oklahoma district court denied his motion on August 15, 2002.

On January 23, 2004, Bouziden filed an application for post-conviction relief,

which was denied on April 19, 2004. Bouziden appealed that decision on M ay
26, 2004, but the Oklahoma Court of Criminal Appeals (“OCCA”) dismissed his

appeal as untimely. On M arch 22, 2005, Bouziden filed a second application for

post-conviction relief, which was denied by the Oklahoma district court on June

14, 2005. The same court issued amended orders denying relief on July 19, 2005.

 Bouziden appealed the amended orders on August 16, 2005, and the OCCA

affirmed on November 9, 2005.

      On January 9, 2006, Bouziden filed this § 2254 habeas petition, alleging

that his attorney lied to him concerning the potential length of his sentence, that

the trial judge promised to review his sentence one year after his conviction, and

that the trial judge misled him as to his right to appeal. The district court

dismissed Bouziden’s petition as time-barred and denied his subsequent request

for a COA. He now requests a COA from this court. 1




      1
        Bouziden’s petition was filed after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA ’s provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)).
AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under
§ 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be
issued “only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires Bouziden to show “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the district
court denied Bouziden a CO A, he may not appeal the district court’s decision
absent a grant of COA by this court.

                                         -2-
      The statute of limitations for § 2254 petitions is set forth in 28 U.S.C.

§ 2244(d). It states:

      (1) 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. The limitation period shall run from the
      latest of –
          (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review ;
          . . . or
          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
       (2) The 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 under this subsection.

      Bouziden’s conviction became final on August 26, 2002. 2 Accordingly, he

had until August 26, 2003 to file a habeas petition or toll the statute of limitations

by filing an application for state post-conviction relief. Bouziden did neither. H e

filed his habeas petition on January 9, 2006, and his first application for state

post-conviction relief on January 23, 2004 – both well after the statute of

limitations had run.




      2
       After the trial court denied Bouziden’s motion to withdraw his plea on
August 15, 2002, he had until August 26, 2002 to file a notice of appeal.
Oklahoma law provides ten days to appeal the denial of an application to
withdraw a plea. See O kla. Stat. tit. 22, Ch. 18, App., Rule 4.2(D ). However,
because August 25, 2002, fell on a Sunday, Bouziden had until A ugust 26, 2002.
See Okla. Stat. tit. 22, Ch. 18, App., Rule 1.5.

                                         -3-
       Alternatively, Bouziden argues that, because the trial judge promised to

review his sentence after one year, his limitations period should not have begun

running until he discovered that promise to be false. See 28 U.S.C.

§ 2244(d)(1)(D) (starting the limitations period when the factual predicate of a

claim could have been discovered). Even if we were to grant Bouziden a

limitations period start date of August 26, 2003, and we express no opinion on

whether this date would be proper, his petition would remain time-barred. Before

the filing of his first application for state post-conviction relief, 126 days had

elapsed. Bouziden’s limitation period would be tolled from January 23, 2004 to

April 19, 2004, while his initial application was pending. See 28 U.S.C.

§ 2244(d)(2). It would also be tolled from April 19, 2004 to M ay 19, 2004, the

time period during which Bouziden could have filed an appeal of his initial

application. The limitations period would not be tolled by Bouziden’s untimely

appeal because it was not “properly filed” under § 2244(d)(1)(D). See Hoggro v.

Boone, 150 F.3d 1223, 1227 n.5 (10th Cir. 1998) (holding that untimely appeals

are not considered properly filed). Bouziden then had 239 days to file once the

tolling period ended, or until January 15, 2005. He did not file his petition by

that date.

       Finally, Bouziden requests equitable tolling. Equitable tolling “is only

available when an inmate diligently pursues his claims and demonstrates that the

failure to timely file w as caused by extraordinary circumstances beyond his

                                          -4-
control.” M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Nothing in the

record indicates that Bouziden faced extraordinary circumstances that prevented

him from diligently pursuing his claims. As such, equitable tolling would be

improper in this case.

      For the reasons set forth above, Bouziden’s request for a COA is DENIED

and his appeal is DISM ISSED.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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