                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        APR 21 2003
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 THOMAS P. BIRD,

          Petitioner - Appellant,
 v.
                                                         No. 02-3392
                                                 (D.C. No. 00-CV-3461-RDR)
 DAVID MCKUNE, Warden;
                                                           (D. Kan.)
 ATTORNEY GENERAL OF THE
 STATE OF KANSAS,

          Respondents - Appellees.


                                       ORDER *


Before EBEL, HENRY and HARTZ, Circuit Judges.




      In 1985, Petitioner Thomas P. Bird was convicted of premeditated murder

in Lyon County District Court in Kansas and sentenced to life in prison. His

conviction was affirmed by the Kansas Court of Appeals, and the Kansas Supreme



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of
orders; nevertheless, an order may be cited under the terms and conditions of 10th
Cir. R. 36.3.
Court denied review in 1993. He also filed a state postconviction motion

pursuant to K.S.A. 60-1507; it, too, was denied in 1993. On November 29, 2000,

Bird filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. He raised two grounds for relief: first, that the indictment in his case was

fatally defective, and second, that the state failed to disclose material, exculpatory

evidence regarding one of the state’s witnesses.

      The district court concluded that Bird’s petition was time-barred under the

Antiterrorism and Effective Death Penalty Act of 1996, dismissed the petition,

and declined to grant Bird a Certificate of Appealability. The court also rejected

Bird’s argument that the statute of limitations should be equitably tolled because

his attorney failed to file either a second state postconviction relief petition or a

federal habeas petition, either of which could have tolled the statute of

limitations.

      We DENY a certificate of appealability for substantially the reasons stated

by the district court and DISMISS Bird’s appeal.



                                         ENTERED FOR THE COURT


                                         David M. Ebel
                                         Circuit Judge




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