                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          October 27, 2006
                                  T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 C OD Y SM ITH ,

              Petitioner - A ppellant ,                     No. 06-5156

        v.                                                (N.D. Oklahoma )

 RANDALL W ORKM AN, W arden,                         (D.C. No. 05-CV-721-C)

              Respondents - Appellees.




                                          ORDER


Before H E N R Y , B R ISC O E , and O ’B R IE N , Circuit Judges.


      Cody Smith, an Oklahoma state prisoner proceeding pro se and in forma

pauperis, seeks a certificate of appealability (“COA”) to appeal the district court’s

order denying his 28 U.S.C. § 2254 petition for habeas corpus as untimely filed.

In that § 2254 petition, M r. Smith alleged nine contentions: (1) a double jeopardy

violation, (2-3) two claims of prosecutorial misconduct, (4-5) two claims of

judicial misconduct, (6-7) ineffective assistance of trial and appellate counsel, (8)

excessive sentence, and (9) violation of the Oklahoma post-conviction procedures

act. M r. Smith also seeks reconsideration of the denial of his motion for

appointment of counsel. For substantially the same reasons set forth by the

district court in its well-reasoned order, we deny M r. Smith’s application for a
COA, deny his motion to reconsider the motion for appointment of counsel, and

dismiss this matter.

                                 I. BACKGROUND

      M r. Smith was convicted of three counts of sexually abusing a minor child

in Tulsa County District Court and sentenced to three consecutive twenty-five

year sentences. On August 21, 2003, the Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed his conviction. M r. Smith did not seek certiorari review in

the United States Supreme Court.

      On M ay 27, 2004, M r. Smith filed his first application for post-conviction

relief , which was denied on October 29, 2004. M r. Smith did not appeal this

denial. M r. Smith filed an amended application for post-conviction relief on

December 6, 2004. The state district court construed the amended application as

a second application and denied relief. M r. Smith attempted to perfect an appeal,

but on January 31, 2005, the O CCA dismissed the appeal because M r. Smith’s

petition was untimely.

      On July 25, 2005, M r. Smith filed a third application for post-conviction

relief, which was denied on September 27, 2005. The OCCA affirmed the district

court’s denial of post-conviction relief. M r. Smith filed his petition under § 2254

on December 21, 2005.




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      After determining that M r. Smith’s conviction became final on November

29, 2003, the district court denied the petition as time-barred under the one-year

limitation period established by 28 U.S.C. § 2244(d). Noting that M r. Smith did

not present any exceptional circumstances that might warrant equitable tolling,

the district court denied M r. Smith a COA and this request followed.

                                   II. DISCUSSION

      A COA can only issue “if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). W hen a district court

has dismissed a habeas petition on procedural grounds, a certificate w ill only

issue when “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000).

      Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court.” 28 U.S.C. § 2244(d)(1). In his COA application

before us, M r. Smith does not address the untimeliness of his petition, and he



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does not raise equitable tolling. Instead, M r. Smith focuses on his underlying

claims.

      Based on our review of the record on appeal, the district court’s order, and

M r. Smith’s submissions to this court, we are not persuaded jurists of reason

would disagree with the district court’s disposition of M r. Smith’s § 2254

petition. In other w ords, reasonable jurists would agree with the district court

that M r. Smith’s petition is barred by the one-year statute of limitations and that

this case does not present “rare and exceptional circumstances” warranting

equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232 F.3d 799,

808 (10th C ir. 2000) (internal quotation marks omitted). Accordingly, we DENY

M r. Smith’s request for a COA, deny his motion to reconsider the denial of the

motion for appointment of counsel, and DISM ISS the matter.

                                 Entered for the Court,




                                 Robert H. Henry
                                 Circuit Judge




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