                                                                       FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                    UNITED STATES COURT OF APPEALS                       FEB 8 2002

                                  TENTH CIRCUIT                    PATRICK FISHER
                                                                            Clerk



 DENNIS WALLACE,

          Petitioner-Appellant,

 v.                                                   No. 01-3284
                                               (D.C. No. 99-CV-3382-DES)
 MICHAEL NELSON; CARLA                                 (D. Kansas)
 STOVALL, Attorney General of
 Kansas,

          Respondents-Appellees.




                          ORDER AND JUDGMENT *

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.




      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      Mr. Wallace, petitioner pro se, appeals a district court order dismissing his

habeas corpus action as untimely under 28 U.S.C. § 2244(d)(1). Attached to his

opening brief is Mr. Wallace’s application for a certificate of appealability

pursuant to 28 U.S.C. § 2253. For the reasons set out below, we deny Mr.

Wallace’s request for a certificate of appealability and dismiss the appeal.

      After entering an Alford plea to amended charges of second-degree murder

and aggravated robbery, Mr. Wallace was sentenced to two consecutive sentences

of 15 years to life. On March 8, 1996, the state court conviction became final.

Thereafter, Mr. Wallace filed two unsuccessful post-judgment motions in state

court. He filed his habeas petition pursuant to 28 U.S.C. § 2254 in federal district

court on December 8, 1999. The district court dismissed the action, adopting the

magistrate judge’s conclusions that the petition was untimely under 28 U.S.C.

§ 2244(d)(1), and that Mr. Wallace had failed to show extraordinary

circumstances to justify equitable tolling of the statute of limitations. The court

denied Mr. Wallace’s request for a certificate of appealability under 28 U.S.C. §

2253. Mr. Wallace appeals the dismissal of his habeas action and requests that

this court grant him a certificate of appealability.

      The statute of limitations for filing a habeas petition is set forth in 28

U.S.C. § 2244(d)(1), as enacted by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), which states “[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

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judgment of a State court.” For cases in which the petitioner’s conviction became

final before the effective date of AEDPA, the one-year period begins to run on

April 24, 1996. See Marsh v. Soares, 223 F.3d 1217, 1218 (10 th Cir. 2000), cert.

denied, 531 U.S. 1194 (2001).

       Not applicable towards this period of limitation is “[t]he time during which

a properly filed application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending. . .” 28 U.S.C. §

2244(d)(2). Moreover, this circuit has recognized an “equitable tolling” of the

one-year period when “an inmate diligently pursues his claims and demonstrates

that the failure to timely file was caused by extraordinary circumstances beyond

his control.” Marsh, 223 F.3d at 1220 (citing Miller v. Marr, 141 F.3d 976, 978

(10 th Cir. 1998)).

       Mr. Wallace’s state conviction became final on March 8, 1996, which was

prior to the effective date of AEDPA. Therefore, his one-year period of limitation

to file a habeas petition did not begin to run until April 24, 1996. After 357 of

the 365 days in the period had passed on April 17, 1997, Mr. Wallace filed his

first application for state collateral review of his conviction, effectively stopping

the running of the limitations period. The period did not resume until September

29, 1999, the day after the Kansas Supreme Court denied review of Mr. Wallace’s

second petition for collateral review. Eight days later, on October 6, 1999, the

365-day period expired.

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      Mr. Wallace alleges that his appellate counsel failed to notify him of the

Kansas Supreme Court’s decision until December 1, 1999, and points out that he

filed his habeas petition with the district court on December 8, 1999, a mere

seven days later. Although Mr. Wallace’s petition was filed 63 days after the

statute of limitations had run, he contends his case is appropriate for equitable

tolling of the one-year period. He asserts that his appellate counsel’s failure to

notify him of the state supreme court decision before the limitations period had

expired constitutes “extraordinary circumstances beyond his control,” thereby

justifying equitable tolling. The district court, relying on the magistrate’s

recommendation, found otherwise, and we agree. As we stated in Miller, “It is

apparent that [petitioner] simply did not know about the limitation in the AEDPA

until it was too late.” 141 F.3d at 978. Mr. Wallace cites no case to support his

claim that a failure of counsel supports equitable tolling of the AEDPA

limitations period and we have found none.

      Accordingly, Mr. Wallace’s habeas petition was untimely under AEDPA.

We DENY his request for a certificate of appealability and DISMISS the appeal.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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