                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    March 20, 2009
                                  TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 PHILLIP BYNUM,

          Petitioner-Appellant,

 v.
                                                        No. 08-6221
                                                (D.C. No. 5:08-CV-00454-D)
 BRUCE HOWARD, Warden,
                                                       (W.D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      On August 4, 2006, Phillip Bynum pled guilty in Oklahoma state court to a

charge of possession of a dangerous controlled substance with intent to distribute.

He was sentenced to a prison term of 20 years. Mr. Bynum did not attempt to

withdraw his plea or appeal his conviction. He did file two motions for post-

conviction relief in the state courts, both of which were denied.

      On April 30, 2008, Mr. Bynum turned his efforts to federal court, filing a

pro se federal habeas petition under 28 U.S.C. § 2254 in the United States District



      *
        This order is not binding precedent except under the doctrines of law of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.
Court for the Western District of Oklahoma, presenting four claims for relief.

The district court referred the petition to a magistrate judge. After the magistrate

judge recommended dismissing Mr. Bynum’s petition as time-barred, the district

court adopted the Report and Recommendation and ordered the petition dismissed

as untimely. Mr. Bynum now seeks a certificate of appealability (“COA”) from

us in order to appeal the district court’s order of dismissal. Mr. Bynum also

renews his motion to proceed in forma pauperis.

      We may issue a COA only if the petitioner makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court dismisses a § 2254 petition on procedural grounds, we may issue a

COA only if “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). Based on our independent review of the record in this case, and affording

solicitous construction to Mr. Bynum’s pro se filings, see Van Deelen v. Johnson,

497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we find that Mr. Bynum has not met

this threshold.

      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a motion for habeas relief brought under § 2254 generally must be

made within one year from the date on which the conviction became final. 28

U.S.C. § 2244(d)(1)(A). When a defendant pleads guilty in Oklahoma state court

and does not attempt to withdraw the plea or appeal, as is the case here, the

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sentence becomes final after the expiration of the ten-day period in which a

defendant can seek to withdraw a plea under Oklahoma law. See Fisher v.

Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). The one-year limitations period

thus began to run in this case on August 14, 2006. Mr. Bynum, however, did not

file his petition until April 30, 2008, well after one year had passed. Accordingly,

unless the one-year limitations period was tolled for a sufficient period of time,

Mr. Bynum’s petition is clearly time-barred.

      We see no basis for tolling that could render this petition timely. While the

AEDPA limitations period is tolled for “[t]he time during which a properly filed

application for State post-conviction relief . . . is pending,” 28 U.S.C.

§ 2244(d)(2), the only state court motion Mr. Bynum filed during the limitations

period, a request for a reduction or modification of his sentence, was filed on

July 26, 2007, and denied on July 27, 2007. Even if such a motion was capable of

tolling the limitations period, a question over which there is some doubt, 1 the

motion was only pending for one day and so is obviously of no avail to Mr.

Bynum. As for Mr. Bynum’s other state post-conviction motion, it was filed after

the one-year limitations period had expired (on October 25, 2007), and thus did


      1
         The magistrate judge found that the motion requesting judicial review of
a sentence did not “constitute post-conviction proceedings for purposes of tolling
the AEDPA limitations period,” citing one of our unpublished opinions. Rep. and
Rec. at 5 (citing Nicholson v. Higgins, 2005 WL 1806446 (10th Cir. 2005)).
Because we find Mr. Bynum’s petition would not be timely even if this motion
tolled the limitations period, we have no need to resolve that question.

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not toll the limitations period. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th

Cir. 2006) (“Only state petitions for post-conviction relief filed within the one

year allowed by AEDPA will toll the statute of limitations.”).

      Neither do we discern a basis for equitable tolling. The one-year

limitations period of § 2244(d) is subject to equitable tolling only if “an inmate

diligently pursues his claims and demonstrates that the failure to timely file was

caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000). Mr. Bynum, however, has not even attempted

to show that he was diligent in pursuing his federal claims or that his failure to

timely file was due to “extraordinary circumstances beyond his control.” Finding

no basis for statutory or equitable tolling, Mr. Bynum’s petition is clearly time-

barred.

      Because reasonable jurists could not debate whether Mr. Bynum’s petition

is time-barred, his request for a COA is denied and this appeal is dismissed.

Finally, because we find that Mr. Bynum has not shown the existence of a

nonfrivolous argument in support of the issues raised on appeal, we deny his

motion to proceed in forma pauperis.

                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge


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