                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 12 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


JAMES EDWARD BOYKINS,

       Petitioner-Appellant,
                                                        No. 04-5045
v.                                             (Northern District of Oklahoma)
                                                 (D.C. No. 03-CV-246-EA)
GLYNN BOOHER,

       Respondent-Appellee.




                                     ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      This matter is before the court on James Edward Boykins’ request for a

certificate of appealability (“COA”). Boykins seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court,” unless the petitioner first obtains a COA).

Because Boykins has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.
      Boykins pleaded guilty in Oklahoma state court to one count of possession

of illegal drugs with intent to distribute and one count of failure to affix a tax

stamp. He was sentenced to a twenty-year term of imprisonment on each count,

with the sentences to run concurrently. Because Boykins did not file an

application to withdraw his guilty plea within ten days of the entry of his

judgment of conviction and sentences, his conviction became final on December

4, 1999. See Rules of the Court of Criminal Appeals 1.2(A)(2), 4.2(A), 22 Okla.

Stat., Ch.18, App. Boykins filed the instant 28 U.S.C. § 2254 habeas petition on

April 11, 2003.

      The district court dismissed Boykins’ § 2254 petition as untimely pursuant

to 28 U.S.C. § 2244(d). In so doing, the district court noted that because Boykins

had not filed a state application for post-conviction relief during the year after his

conviction became final, he was not entitled to statutory tolling of the limitations

period pursuant to 28 U.S.C. § 2244(d)(2). 1 The district court further concluded

that because Boykins had not acted diligently in seeking relief from his

conviction, he was not entitled to equitable tolling. Boykins seeks a COA so that

he can appeal the district court’s dismissal with prejudice of his § 2254 habeas

petition.



      1
       In fact, Boykins did not file an application for state post-conviction relief
until October 30, 2002, almost three years after his conviction became final.

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      To be entitled to a COA, Boykins must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “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.” Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003) (quotations

omitted). When the district court denies a habeas petition on procedural grounds

without reaching the petitioner’s underlying constitutional claim the petitioner has

an additional burden. In those circumstances, a COA should issue when the

petitioner shows, at least, that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in

its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The test

being two-pronged, a COA may be denied on either basis. Id. at 485.

      After careful review of the record, we conclude reasonable jurists could not

disagree Boykins failed to file his petition within the applicable limitation period

and equitable tolling is unwarranted. On appeal, Boykins does not contest that he

filed his § 2254 habeas petition well outside the one-year limitations period set

out in § 2244(d). Nor does he assert that he acted diligently in pursuing his post-

conviction remedies. Instead, he baldly asserts that because he is raising a


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constitutional claim, it should be heard on the merits despite his failure to seek

relief in a timely fashion. The law of this circuit is, however, clear: to avail

himself of equitable tolling, Boykins must demonstrate that he diligently pursued

his claims. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Because it is

clear that Boykins did not act diligently, the district court properly dismissed

Boykins § 2254 petition as time-barred. Boykins request for a COA is DENIED;

this appeal is hereby DISMISSED.

                                        Entered for the Court
                                        PATRICK FISHER, Clerk of Court


                                        by:
                                                Deputy Clerk




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