                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     October 17, 2013

                                                                       Elisabeth A. Shumaker
                                  TENTH CIRCUIT                            Clerk of Court



 BRENT B. GOLDEN,

        Petitioner - Appellant,                            No. 13-6173
                                                   (D.C. No. 5:13-CV-00395-M)
 v.                                                      (W.D. Oklahoma)

 RICK FORD,

        Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.


      Brent Golden applied for relief under 28 U.S.C. § 2254 in the United States

District Court for the Western District of Oklahoma. The magistrate judge issued a

report and recommendation concluding that the petition should be dismissed as untimely.

The district court adopted the magistrate judge’s recommendation and dismissed the

application. Mr. Golden seeks a certificate of appealability (COA) from this court. See

28 U.S.C. §2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254). We

deny his motion to proceed in forma pauperis, deny the application for a COA, and

dismiss the appeal.
       A jury in Oklahoma state court convicted Mr. Golden of distribution of a

controlled dangerous substance. On February 14, 2011, judgment was entered imposing

a sentence of 20 years. Mr. Golden did not appeal but filed an application under § 2254,

which was dismissed on July 1, 2011, for failure to exhaust state remedies. He filed an

application for state postconviction relief on May 2, 2011. The state court denied the

application and the Oklahoma Court of Criminal Appeals (OCCA) affirmed on

August 30, 2011. Mr. Golden filed a state postconviction application for an appeal out of

time on September 14, 2011. The court denied his application and the OCCA affirmed

on March 1, 2012. On January 30, 2012, he also filed a motion for sentence

modification, which was denied by the state court on February 3, 2012.

       On March 9, 2012, Mr. Golden filed a petition for a writ of habeas corpus with the

OCCA, but it declined jurisdiction because he had not first sought relief in state district

court. He then filed a “Motion for False Imprisonment, False Arrest, Malicious

Prosecution” on April 10, 2012, in state district court; it was denied on May 2, 2012. R.,

Vol. 1 at 130. He filed a petition in error with the OCCA on June 5, 2012, but the OCCA

declined jurisdiction because the petition was untimely. He filed his present § 2254

application on April 22, 2013.

       “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If

the application was denied on procedural grounds, the applicant faces a double hurdle.

Not only must the applicant make a substantial showing of the denial of a constitutional
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right, but he must also show “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). “Where a plain procedural bar is present and the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Id.

       Applications under § 2254 are subject to a one-year statute of limitations under the

Anti-Terrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1).

The statute provides several alternative starting dates for the limitations period. The only

one applicable here is the date when Mr. Golden’s judgment became final. See id.

§ 2244(d)(1)(A). That date was February 24, 2011, when Mr. Golden could no longer

file an appeal. See Okla. R. Crim. App. 2.5 (ten-day time limit for criminal appeals).

       AEDPA tolls the limitations period, however, while a properly filed application

for state postconviction or other collateral review is pending. See 28 U.S.C.

§ 2244(d)(2). Under that provision, Mr. Golden is at most entitled to 121 days of tolling

while his May 2, 2011 application for state postconviction relief was pending; 170 days

while his September 14, 2011 state postconviction claim was pending; and 23 days while

his April 10, 2012 motion was pending.

       Mr. Golden is not entitled to tolling during the time his initial § 2254 application

was pending because applications for federal relief do not toll the limitations period. See

Duncan v. Walker, 533 U.S. 167, 181–82 (2001). He is also not entitled to additional
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tolling for the period his January 30, 2012, motion for sentence modification was pending

or the time in which he could have properly appealed the motion’s denial because that

period was already tolled by his September 14, 2011, state postconviction application.

See Mills v. McKune, 186 F. App’x 828, 830–31 (10th Cir. 2006) (denying additional

statutory tolling for days subsumed by another tolling period). And he is not entitled to

tolling for the time covered by his petitions to the OCCA on March 9, 2012, and June 5,

2012, that were dismissed for lack of jurisdiction. See Artuz v. Bennett, 531 U.S. 4, 8

(2000) (application for state postconviction review must comply with rules prescribing,

for example, “the form of the document, the time limits upon its delivery, the court and

office in which it must be lodged, and the requisite filing fee,” to satisfy the “properly

filed” requirement for tolling under § 2244(d)(2) (italics, footnote, and internal quotation

marks omitted)). He may, however, be entitled to 10 days of tolling for the time in which

he could have properly filed an appeal with the OCCA after the state district court denied

his April 10, 2012 motion. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000)

(limitations period is tolled during the period in which a petitioner could have sought an

appeal under state law); Okla. R. Crim. App. 5.2(C)(1) (10-day time limit for filing notice

of appeal).

       In total, then, Mr. Golden is entitled to at most 324 days of tolling, which would

extend the time he could have filed his § 2254 application from February 24, 2012, to

January 14, 2013. But he did not file his application until April 22, 2013, more than three

months after his limitations period had expired.
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       The district court made essentially the same computation for the limitations period

and Mr. Golden does not challenge that computation in this court nor does he argue for

equitable tolling. Reasonable jurists could not debate the district court’s determination

that Mr. Golden’s application was untimely.

       We DENY the motion to proceed in forma pauperis, DENY the application for a

COA, and DISMISS the appeal.

                                          ENTERED FOR THE COURT



                                          Harris L Hartz
                                          Circuit Judge




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