                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         November 16, 2005
                                   TENTH CIRCUIT
                                                                           Clerk of Court

 RICHARD LIONEL MAYBERRY,

                  Petitioner-Appellant,                   No. 05-6053
          v.                                            (W.D. of Okla.)
 RON WARD,                                         (D.C. No. CV-04-1687-F)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                   *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **




      Petitioner-Appellant Richard L. Mayberry, a state prisoner appearing pro

se, filed a petition for writ of habeas corpus in the district court for the Western

District of Oklahoma pursuant to 28 U.S.C. § 2254. The district court held the

petition to be untimely under 29 U.S.C. § 2244(d), denied a certificate of

appealability (COA), and dismissed. Because Mayberry has not made a


      *
         This order is not binding precedent, except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2),

we deny a COA and dismiss the appeal.

      I. Background

      The parties are familiar with the facts of this case and we need not restate

them here. After pleading guilty to robbery with a firearm, assault and battery

with a dangerous weapon, and possession of a firearm, Mayberry was sentenced

on March 14, 1994, to 50 years imprisonment. He filed an application for post-

conviction relief, but it was denied by a state district court on October 12, 1994.

Mayberry did not appeal. On September 3, 2003, he filed a second petition for

post-conviction relief, which was denied by a state district court on November 13,

2003. The Oklahoma Court of Criminal Appeals declined jurisdiction due to

Mayberry’s failure to file a timely appeal. Mayberry filed his third petition for

post-conviction relief on May 3, 2004, and it was again denied by a state district

court. The Oklahoma Court of Criminal Appeals affirmed the denial on August

31, 2004.

      Mayberry filed his petition in federal district court on December 13, 2004.

He claimed that the state violated his due process rights by denying his

applications for post-conviction relief without a hearing, that his pleas were not

knowingly made, and that his trial counsel was ineffective, resulting in his guilty

pleas and his untimely motion to withdraw his guilty pleas.


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       II. Legal Issues

       We may grant a COA if Mayberry “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000);     see also United

States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). In cases where the

district court denies a habeas petition on procedural grounds without reaching the

underlying constitutional claim, a COA should issue if the habeas petitioner

shows (1) reasonable jurists would find it debatable whether the petition states a

valid claim of the denial of the constitutional right, and (2) reasonable jurists

would find it debatable whether the district court was correct in its procedural

ruling. Slack v. McDaniel , 529 U.S. 473, 484 (2000).

       Absent a showing of statutory or equitable tolling, state prisoners have a

one-year period within which to file a habeas corpus petition.      See 28 U.S.C.

§ 2244(d)(1)(A) . In cases such as this one, where Mayberry’s conviction became

final prior to the enactment of AEDPA, the one-year limitations period runs from

the Act’s effective date, which was April 24, 1996.       Hoggro v. Boone , 150 F.3d

1223, 1225-1226 (10th Cir. 1998) (citing 28 U.S.C. § 2244(d)(1)). Thus, absent

statutory or equitable tolling, Mayberry had one year from that date to file his

petition in federal district court. The limitations period can be tolled for a

“properly filed application for state post-conviction or other collateral review.”

28 U.S.C. § 2244(d)(2).


                                            -3-
       Mayberry did not file his federal petition until 2004, many years after the

limitations period ended in 1997. Furthermore, he is not entitled to statutory or

equitable tolling. Regarding statutory tolling, Mayberry’s first application for

post-conviction relief did not toll the limitations period, because it was filed

before the enactment of AEDPA, i.e., before the one-year period began in 1996.

Likewise, Mayberry’s second and third applications for relief were not tolling

events because they were not filed in state court until      after the one-year clock had

expired in 1997.   See May v. Workman , 339 F.3d 1236, 1237 (10th Cir. 2003).

Finally, we agree with the magistrate judge that Mayberry has shown no cause for

equitable tolling, which is limited to “rare and exceptional circumstances.”

Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000). Mayberry has alleged no

facts that would allow us to find “circumstances where the limitation period at

least raises serious constitutional questions and possibly renders the habeas

remedy inadequate and ineffective.”       Miller v. Marr , 141 F.3d 976, 978 (10th Cir.

1998). As the magistrate judge pointed out, Mayberry was not diligent in

pursuing his federal claims, and “this Circuit has generally declined to apply

equitable tolling when it is facially clear from the timing of the state and federal

petitions that the petitioner did not diligently pursue his federal claims.”    Burger

v. Scott , 317 F.3d 1133, 1141 (10th Cir. 2003).




                                              -4-
Accordingly, we DENY a COA and DISMISS the appeal.



                            Entered for the Court

                            Timothy M. Tymkovich
                            Circuit Judge




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