                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    May 2, 2012
                                  TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                    Clerk of Court

 VICTOR RAY JOHNSON,

          Petitioner-Appellant,

 v.
                                                        No. 12-6025
                                                 (D.C. No. 5:11-CV-01370-F)
 JUSTIN JONES,
                                                        (W.D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      After Victor Johnson pleaded guilty in Oklahoma state court to several

drug-related charges and was sentenced to ten years in prison, he complained that

the prosecution promised him a three year sentence. He unsuccessfully sought

state post-conviction relief on this basis and eventually filed a federal habeas

petition under 28 U.S.C. § 2254. The district court, however, dismissed Mr.

Johnson’s petition after determining it was untimely, see 28 U.S.C. § 2244(d)(1),

and that none of the potential grounds for statutory or equitable tolling of the



      *
         This order is not binding precedent except under the doctrines of law of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.
limitations period could save the petition. Seeking to appeal that dismissal, Mr.

Johnson asked the district court for a certificate of appealability (“COA”), which

the court denied. Now before this court, Mr. Johnson renews his request for a

COA.

       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). And 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).

       We see no way, however, in which reasonable jurists might debate the

district court’s analysis that Mr. Johnson’s petition is time-barred. The one-year

limitations period for filing a federal habeas petition began running when Mr.

Johnson’s conviction became final on March 16, 2009. See 28 U.S.C.

§ 2244(d)(1)(A). He did not file this petition until November 17, 2011, well over

a year and a half past the filing deadline. Mr. Johnson’s state post-conviction

petition did not toll any of this time because even that petition was not filed until

many months past the end of the one-year period. See Fisher v. Gibson, 262 F.3d

1135, 1142-43 (10th Cir. 2001).

       Mr. Johnson objects that the limitations clock should not have started on

the date of his conviction because, he says, he could not have discovered “the

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factual predicate of the claim . . . through the exercise of due diligence” until

some six months later. See 28 U.S.C. § 2244(d)(1)(D). He claims he could not

have earlier discovered that his sentence was longer than the three year term (he

says) he agreed to in his guilty plea because the higher sentence was reflected

only in court documents that had been fabricated or altered after his sentence was

imposed. The problem is that the Oklahoma court that dismissed his state post-

conviction motion found this whole story incredible, and Mr. Johnson offers us no

basis to question its factual finding. To the extent Mr. Johnson’s petition can be

construed to argue for some other basis for equitable tolling, the district court’s

conclusion that tolling is unavailable is unassailably correct.

      Accordingly, Mr. Johnson’s application for a COA is denied and this appeal

is dismissed. The motion to proceed in forma pauperis is granted.



                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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