                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                        September 27, 2012
                                    TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 DANNY A. CLEMENTS,
                 Petitioner–Appellant,                         No. 12-6170
           v.                                         (D.C. No. 5:12-CV-00247-W)
 ERIC FRANKLIN, Warden,                                     (W.D. Oklahoma)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       Petitioner Danny Clements, a state prisoner proceeding pro se, seeks a certificate

of appealability to appeal the district court’s denial of his § 2254 habeas petition. In May

2001, Petitioner entered a “blind” plea of guilty to charges of robbery with a dangerous

weapon, knowingly concealing stolen property, burglary in the second degree, and

unlawful possession of a sawed-off shotgun. He was sentenced to an aggregate twenty-

year term of imprisonment.

       After receiving his sentence, Petitioner filed various state pleadings arguing (1) his

guilty plea was not knowingly and voluntarily entered because it was based on erroneous



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
advice from his attorney and (2) his twenty-year sentence was excessive and should be

modified. After these challenges failed, Petitioner filed the instant federal habeas petition

in March 2012. Respondent filed a motion to dismiss the petition as time-barred. In

response, Petitioner argued his petition was timely filed because two recent Supreme

Court decisions, Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S.

Ct. 1376 (2012), support his claim of ineffective assistance of counsel. The magistrate

judge recommended Petitioner’s petition be dismissed as untimely. He concluded that,

even calculating the limitations period and construing Petitioner’s arguments as liberally

as possible, Petitioner’s habeas petition was still untimely. The district court agreed and

dismissed the petition as time-barred.

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of the

habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Reasonable jurists would not debate whether the district court erred in concluding that 28

U.S.C. § 2244(d)(1)(C) does not apply because the Supreme Court cases relied on by

Petitioner are factually dissimilar to his case, and that Petitioner was not entitled to any

further statutory tolling. Nor would reasonable jurists debate whether the district court

abused its discretion by denying equitable tolling where Petitioner failed to show that he

diligently pursued his claims or that extraordinary circumstances prevented him from

filing his federal habeas petition within the limitations period. Therefore, for

substantially the same reasons given by the magistrate judge and the district court, we

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DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal.


                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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