                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 15, 2005
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 JEFFRY A. MCCARLEY,

          Petitioner - Appellant,                            Nos. 04-7114
                                                                  04-7134
 v.                                                    (D.C. No. CIV-03-574-P)
                                                             (E.D. Okla.)
 RON WARD, Warden,

          Respondent - Appellee.


                     ORDER DENYING A CERTIFICATE OF
                             APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.



      State prisoner Jeffrey A. McCarley, pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition. 1 For substantially the same reasons set forth in the district court order,


      1
         McCarley’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). 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 McCarley to demonstrate “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
                                                                        (continued...)
we DENY McCarley’s requests for a COA and DISMISS. 2

      McCarley was convicted of Assault and Battery with a Deadly Weapon with

Intent to Kill, and was sentenced to a total of fifty years’ imprisonment. On

direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the

conviction and sentence on the merits on December 3, 1996, and the 90-day

period for appeal to the U.S. Supreme Court expired on March 3, 1997. Thus, the

one-year AEDPA statute of limitations ran on March 3, 1998. McCarley filed a

petition for a writ of habeas corpus with the U.S. District Court on October 20,

2003. AEDPA provides for a one-year statute of limitations on applications for

writs of habeas corpus by persons in custody pursuant to the judgment of a State

court. § 2244(d).

      The district court dismissed McCarley’s habeas petition on the basis of the

AEDPA statute of limitations. Because the district court dismissed on a

procedural ground prior to development of either the factual or legal basis for his

underlying claims, our assessment of the merits of his claims is necessarily


      1
       (...continued)
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Because the district court denied McCarley a COA, he may
not appeal the district court’s decision absent a grant of a COA by this court.
      2
        There are two case numbers on appeal because McCarley filed a second
notice after the district court denied his request for a COA. Consequently these
appeals constitute a single matter for all practical purposes.

                                         2
limited. “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner 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 , 529 U.S. at 484 (emphasis added)   .

McCarley has not shown that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.

       Because McCarley does not, nor could he, contest that the AEDPA statute

of limitations ran before he filed his habeas petition in federal court, he instead

argues that we should deem the statute of limitations to have equitably tolled. In

support of this proposition, he argues that he suffers from brain damage and that

he had inadequate law library facilities. We agree with the district court that he

has not demonstrated the “exceptional circumstances,” Biester v. Midwest Health

Servs., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996), and diligent pursuit of his

remedies, see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), required for

equitable tolling.

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




                                            3
and the appeal is DISMISSED.



                               ENTERED FOR THE COURT



                               Carlos F. Lucero
                               Circuit Judge




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