                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         March 14, 2007
                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                             __________________________                   Clerk of Court

 CA LV IN SHANE M YERS,

          Petitioner - A ppellant,

 v.                                                       No. 06-4034
                                                           (D. Utah)
 LO W E LL H . C LA RK ,                          (D.Ct. No. 2:05-CV-367-TC)

          Respondents - Appellees.
                         ____________________________

            OR DER DENY ING CERTIFICATE O F APPEALABILITY
                     A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Calvin M yers, a state prisoner proceeding pro se 1 and in form a pauperis,

filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. The district court

dismissed the petition as untimely. M yers then requested a certificate of



      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003). Myers’ motion to proceed in forma pauperis on appeal
was granted by the district court.
appealability (COA). Because the district court did not rule on the request w ithin

thirty days, we deem it denied. See 10th Cir. R. 22.1(C). M yers renews his

application for a COA with this Court. For the same reasons set forth by the

district court, we DENY a COA and dismiss his application.

Background

      The State of U tah charged M yers w ith two counts of aggravated murder,

both capital offenses, alleging M yers had killed his girlfriend and her unborn

child. M yers entered an unconditional guilty plea to one count of aggravated

murder and the trial court dismissed the second count in accordance with a plea

agreement. On February 6, 1996, the trial court sentenced M yers to life

imprisonment with the possibility of parole. M yers did not file a direct appeal.

      In July 2000, M yers filed a petition for post-conviction relief in Utah state

court. The petition was dismissed on the basis of state procedural bars and the

court’s finding M yers’ trial counsel was not ineffective. M yers appealed this

decision and the Utah Supreme Court affirmed the dismissal. M yers v. State of

Utah, 94 P.3d 211 (Utah 2004). M yers then filed a § 2254 petition on M ay 23,

2005, asserting, inter alia, his claims were not procedurally barred. The district

court dismissed the petition, concluding M yers’ claims were untimely under the

Antiterrorism and Effective D eath Penalty Act of 1996 (AEDPA).




                                         -2-
Certificate of Appealability

         A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if M yers makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, M yers must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “W here 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. W e review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         Because M yers’ conviction became final before the effective date of

AEDPA , April 1996, M yers was required to file his §2254 petition by April 1997,

                                           -3-
unless the limitation period was tolled. Gibson v. Klinger, 232 F.3d 799, 803

(10th Cir. 2000) (one-year statute of limitations does not begin to run until

AEDPA's effective date, April 24, 1996, for convictions becoming final before

that date). The district court found M yers filed his § 2254 petition more than one

year after the effective date of AEDPA and there was no justification for

equitable tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001).

      M yers argues he filed within one year of the Utah court’s resolution of his

state post-conviction claims and, therefore, his petition was timely filed. W hile a

claim for state post-conviction relief will generally toll the limitations period, it

will not toll a limitation period which has already expired. Fisher, 262 F.3d at

1142-43. M yers filed his post-conviction claims in July 2000, after the 1997

AEDPA statute of limitations had already expired.

       M yers also fails to present sufficient grounds for the application of

equitable tolling, a remedy applied only in “rare and exceptional circumstances.”

Gibson, 232 F.3d at 808 (quotations omitted). Consequently, the district court’s

dismissal order is not reasonably debatable. Slack, 529 U.S. at 484. M yers has

failed to make a sufficient show ing he is entitled to a COA. W e DENY a COA

and dismiss the application.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




                                          -4-
