                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                                July 11, 2012

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court

 ANTHONY W. McCOSAR,

           PetitionerAppellant,

 v.                                                             No. 12-5017
                                                    (D.C. No. 4:11-CV-00299-GFK-TLK)
 JANE STANDIFIRD, Warden,                                       (N.D. Okla.)

           RespondentAppellee.



                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Anthony McCosar seeks a certificate of appealability (“COA”) to appeal the

district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We conclude that the

district court’s ruling was reasonably debatable but nevertheless a permissible exercise of

discretion. Accordingly, we grant a COA and, exercising jurisdiction under 28 U.S.C.

§ 1291, affirm the district court’s dismissal of McCosar’s petition.

       *
          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 This order and judgment is not binding precedent, except under the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.
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                                               I

       McCosar was convicted in Oklahoma state court of assault and battery with a

deadly weapon and several other related charges. On June 17, 2009, the Oklahoma Court

of Criminal Appeals (“OCCA”) affirmed his convictions and sentences, but vacated fines

imposed as part of his sentence. On September 1, 2010, McCosar filed an application for

post-conviction relief in Oklahoma state court. That court denied the application, and the

OCCA affirmed the denial on March 29, 2011. McCosar filed for federal habeas relief in

a petition dated May 10, 2011. The district court concluded that McCosar’s petition was

filed approximately one month after the one-year limitations period imposed by the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”) had expired and that McCosar

was not entitled to equitable tolling. Accordingly, the district court dismissed the petition

as untimely. McCosar now seeks a COA to appeal that ruling.

                                               II

       When a district court dismisses a petition on procedural grounds, we will grant a

COA if the petitioner can show “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). Although we conclude that McCosar is

entitled to a COA, we ultimately affirm the district court’s dismissal of his petition. See

Allen v. Zavaras, 568 F.3d 1197 (10th Cir. 2009) (granting COA but affirming dismissal


                                              -3-
of petition).

       AEDPA’s one-year limitations period generally begins at “the conclusion of direct

review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). Because

McCosar did not seek certiorari from the United States Supreme Court following the

OCCA’s decision on direct appeal, his conviction became final on September 15, 2009,

when the time to seek certiorari review expired. See Sup. Ct. R. 13(1).

       The AEDPA limitations period is tolled by a properly filed state application for

post-conviction relief. § 2244(d)(2). When McCosar filed his state petition on

September 1, 2010, he had fifteen days remaining to file a federal habeas petition. His

state filing suspended the limitations period until the OCCA affirmed the denial of his

petition on March 29, 2011. Thus, the limitations period for McCosar’s federal petition

expired fifteen days later, on April 13, 2011.

       Habeas petitions may be equitably tolled in some circumstances. Holland v.

Florida, 130 S. Ct. 2549, 2560 (2010). A petitioner seeking equitable tolling must

establish that “some extraordinary circumstance stood in his way and prevented a timely

filing” and that “he has been pursuing his rights diligently.” Id. at 2562 (quotations

omitted). Moreover, the petitioner “bears a strong burden to show specific facts to

support his claim of extraordinary circumstances and due diligence.” Yang v. Archuleta,

525 F.3d 925, 928 (10th Cir. 2008). We review a district court’s decision on equitable

tolling for abuse of discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).


                                            -4-
       Before the district court, McCosar attributed his delay to the OCCA’s failure to

send him notice of its decision affirming the denial of his petition for post-conviction

relief. In response to a motion to dismiss, he asserted that he “only found out about the

Court’s decision after having a family member check” the Oklahoma courts website, and

that he filed his habeas petition “upon determining that a decision had been made on

appeal.” McCosar further stated that he “had every intent of timely prosecuting the

instant petition for writ of habeas corpus and had the habeas petition prepared and ready

for submission upon receiving notice” of the OCCA’s decision.

       The district court recognized that delayed notice of a decision can constitute

“extraordinary circumstances.” See Woodward v. Williams, 263 F.3d 1135, 1142-43

(10th Cir. 2001). It nevertheless faulted McCosar for not providing the date on which he

learned of the OCCA’s decision and for failing to produce any supporting evidence, such

as the prison mail log. The court further reasoned that the time period between the

finalization of McCosar’s direct appeal and his filing of his state petition—approximately

eleven and a half months—weighed against a finding of due diligence.

       We conclude that reasonable jurists could debate whether the district court abused

its discretion in refusing to equitably toll McCosar’s limitations period. The petition was

filed just one month late, and although McCosar failed to provide the date that he learned

of the OCCA decision, a court would not be remiss in overlooking this omission given

his pro se status and the short period involved. We further conclude that the due


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diligence issue is debatable given that McCosar claims to have prepared his federal

petition in advance of the OCCA’s decision. See Holland, 130 S. Ct. at 2565 (“The

diligence required for equitable tolling purposes is reasonable diligence, not maximum

feasible diligence.” (quotations omitted)); see also Woodward, 263 F.3d at 1139, 1143

(remanding on equitable tolling issue despite eleven-month delay between date

conviction became final and date of state petition for post-conviction relief).1

       Nonetheless, we must be mindful of the deferential standard of review over

equitable tolling determinations. We may reverse a district court for abusing its

discretion only when it “renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010)

(quotation omitted). Although reasonable jurists may disagree with the district court’s

holding, we conclude that its decision to deny equitable tolling was within the bounds of

permissible choice.

                                             III

       For the foregoing reasons, we GRANT a COA and AFFIRM the dismissal of


       1
         To obtain a COA, McCosar must also show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right.”
Slack, 529 U.S. at 484. “Because the district court did not address these claims and the
parties have not briefed them on appeal, our review is limited. We will only take a quick
look at the federal habeas petition to determine whether [the petitioner] has facially
alleged the denial of a constitutional right.” Gibson v. Klinger, 232 F.3d 799, 802-03
(10th Cir. 2000) (quotations omitted). We conclude that McCosar’s petition satisfies this
standard.


                                            -6-
McCosar’s habeas petition.




                             Entered for the Court



                             Carlos F. Lucero
                             Circuit Judge




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