                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                          August 11, 2006
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 LO NNY JONES,

       Petitioner - A ppellant,
                                                         No. 06-6057
 v.                                                (D.C. No. 05-CV -630-L)
                                                         (W .D. Okla.)
 STA TE OF O K LA H O MA ,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.




      Lonny Jones, a state inmate appearing pro se, seeks a certificate of

appealability (COA) so that he may appeal from the district court’s denial of his

habeas petition filed pursuant to 28 U.S.C. § 2254. Because M r. Jones has failed

to demonstrate that it is reasonably debatable whether the district court’s

procedural ruling dismissing his claim is correct, Slack v. M cDaniel, 529 U.S.

473, 484 (2000), we deny a COA and dismiss the appeal.

      M r. Jones was convicted in Oklahoma state court of assault and battery on

a police officer (count 1), possession of a firearm after felony conviction (count

2), resisting a police officer (count 3), and aggravated trafficking in
methamphetamine (count 4). He was sentenced to 5 years, 2 years, 1 year and a

$250 fine, 35 years and a $50,000 fine, respectively. He appealed, and on August

27, 2003, the O klahoma Court of Criminal Appeals (OCCA) affirmed counts 1

and 2, reversed on count 3, and reduced the sentence on count 4 to 30 years and

dismissed the fine. On July 9, 2004, M r. Jones moved for a 60-day continuance

to file his motion for post-conviction relief, which was denied on July 13, 2004.

But upon rehearing, the motion was granted and M r. Jones w as given until

September 30, 2004 to file. On September 27, 2004, M r. Jones filed his motion

for post conviction relief, which the state district court denied on November 2,

2004. Apparently M r. Jones did not receive a copy of that decision until

December 15, 2004. 1 M r. Jones appealed, and the O CCA dismissed on timeliness

grounds. On January 10, 2005, he sought a rehearing at the state district court,

which was denied on M arch 28, 2005.

      On June 3, 2005, M r. Jones filed his federal habeas petition. 2 In it, he



      1
          The state apparently stipulated to this fact.
      2
          In his Report and Recommendation, the magistrate judge concluded that
M r. Jones’ habeas petition was filed on April 25, 2005, the date reflected on the
original petition’s certificate of mailing. Report and Recommendation at 3. The
district court disagreed with that determination, finding instead that the date of
filing was June 3, 2005. Apparently the magistrate judge overlooked the law
regarding the prison mailbox rule as articulated in United States v. Cebellos-
M artinez, 371 F.3d 713 (10th Cir. 2004). Upon review of the record and the
district court’s application of Ceballos-M artinez, we find the district court’s
conclusion undebatable and thus base our limitations determination on a filing
date of June 3, 2005.

                                          -2-
challenged his convictions on several grounds. The state moved for dismissal,

arguing that the petition was time-barred. The magistrate judge disagreed,

recommending the motion be denied because equitable tolling rendered the

petition timely. See Report and Recommendation at 7-8.

      On January 23, 2006, without addressing M r. Jones’ constitutional claims,

the district court dismissed his habeas petition as time-barred by the one-year

limitations period in 28 U .S.C. § 2244(d)(1). W hen the district court denies a

habeas petition on procedural grounds and fails to address the prisoner’s

constitutional claims, we may issue a CO A only if the prisoner demonstrates that

it is reasonably debatable whether (1) the petition states a valid claim of the

denial of a constitutional right, and (2) the district court’s procedural ruling is

correct. Slack, 529 U.S. at 484.

      On appeal, M r. Jones argues the merits of his claims and that the district

court erred in determining that his action is time-barred. The district court’s

conclusion that M r. Jones’ claims are time-barred is not reasonably debatable.

M r. Jones’ convictions became final on November 25, 2003, the last day on which

he could have file a certiorari petition with the United States Supreme Court. See

28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 527-28 (2003)

(adding 90-day period in which defendant could seek certiorari). Thereafter, M r.

Jones had one-year to file his federal habeas petition, but the time period would

be tolled during the time a properly filed state post-conviction motion was

                                          -3-
pending. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). Three-hundred six days elapsed

without such a motion. On September 27, 2004, M r. Jones filed a motion for

post-conviction relief, which the state district court denied on November 2, 2004.

The limitations period was tolled during that time. 28 U.S.C. § 2244(d)(2). But

it was not tolled during the pendency of M r. Jones’ notice of appeal and petition

in error because they were untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 417

(2005). Nonetheless, the limitations period was tolled during the 30-day period

that he could have timely filed a petition in error. 3 See Serrano v. W illiams, 383

F.3d 1181, 1185 (10th Cir. 2004) (because New M exico did not preclude the

filing of a rehearing petition to reconsider the denial of certiorari, that time would

be tolled even where petitioner did not so file); see also Gibson v. Klinger, 232

F.3d 799, 803-04 (10th Cir. 2000) (regardless of whether a petitioner actually

appeals a denial of a post-conviction application, the limitations period is tolled

during the period in which the petitioner could have sought an appeal under state

law). Thereafter, another thirty-seven days passed until M r. Jones filed a motion

for rehearing in state district court. That motion, which again tolled the limitation

period, see Nix v. Sec’y for the D ep’t of Corr., 393 F.3d 1235, 1237 (11th Cir.

2004) (per curiam), was pending from January 10 to M arch 28, 2005. Thus, M r.

Jones had another twenty days, i.e., until April 19, 2005, to file his habeas

      3
           W hile a notice of intent to appeal must be filed within 10 days of an
adverse ruling, a petition in error allows 30 days. See Rule 5.2(C)(1)-(2), Okla.
Stat. tit. 22, Ch. 18, app. W e give M r. Jones the benefit of the longer period.

                                         -4-
petition. He did not do so until June 3, 2005; it w as therefore untimely.

      M r. Jones argues that the limitations period should be tolled during certain

additional periods. First, he contends that during the seventy-two day period in

which he prepared his state application for post conviction relief— i.e., from July

9, 2004, the date he moved for a 60 day continuance to file his motion, until

September 27, 2005, the date his motion was filed— the limitations period should

not have run. The limitations period is tolled while a properly filed application

for post-conviction or other collateral review is pending, not during its

preparation. See 28 U.S.C. § 2244(d)(2); cf. Carey v. Saffold, 536 U.S. 214, 219-

20 (2002) (holding that an application is pending as long as the ordinary state

collateral review process is “in continuance”— i.e., “until the completion of” that

process).

      Second, M r. Jones contends the limitation period should have tolled for an

additional forty-three days, representing the time he was unaware that the state

court had denied him post-conviction relief. The limitations period is subject to

equitable tolling in extraordinary circumstances. Gibson, 232 F.3d at 808. This

court has previously indicated that it would allow for such tolling when a

prisoner, despite his diligence, lacked knowledge that the state court reached a

final decision on his case. See W oodward v. W illiams, 263 F.3d 1135, 1143

(10th Cir. 2001). It is undisputed that M r. Jones did not receive notice of denial

until December 15, 2004. But the limitations calculated above afforded M r. Jones

                                         -5-
the thirty day period in which he had to file a petition in error. Thus, the most he

could benefit from his lack of knowledge is thirteen days, which is insufficient to

render his petition timely.

      Last, M r. Jones argues the limitation period should be tolled for the forty-

five days between April 6 and M ay 21, 2005, when, according to him, he was

unable to access applicable forms, addresses, or the mailbox due to a prison-wide

lock down. Though there is evidence of a lock down in the record, M r. Jones

claim fails because he has not shown that he was denied access he sought during

the lock down, or that such denial caused him to be unable to timely file his

petition. See 28 U.S.C. § 2244(d)(1)(B). In fact, our review of the record reveals

that M r. Jones accessed the prison mail system within the time he claimed to be in

lock down. See Aplt. Br. Ex. U (alleging that on April 13, 2005 he filed a notice

of appeal in state court).

      W e GRANT IFP status, DENY a COA, and DISM ISS this appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         -6-
