                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  September 3, 2010
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 JAMES PATRICK RUTTI, JR.,

              Petitioner–Appellant,                       No. 10-8002
 v.                                                      (D. Wyoming)
 WYOMING ATTORNEY GENERAL;                     (D.C. No. 2:07-CV-00138-CAB)
 KENNETH L. KELLER, Wyoming
 Department of Corrections Honor
 Conservation Camp Warden, in his
 official capacity,

              Respondents–Appellees.


                                      ORDER *


Before KELLY, McKAY, and LUCERO, Circuit Judges.



      Petitioner seeks a certificate of appealability to appeal the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. Petitioner pled guilty in Wyoming

state court to third-degree sexual assault and sexual exploitation of a child by

delivering child pornography. His conviction was affirmed on direct appeal, and

his state court habeas petitions were denied. Subsequently, and only a few days



      *
        This order is not binding precedent except under the doctrines of law of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.
before the applicable one-year statute of limitations was set to expire, see 28

U.S.C. § 2244(d)(1), Petitioner filed a § 2254 habeas corpus petition in the

federal district court. Some months later, he filed a motion requesting voluntary

dismissal of the petition without prejudice. The district court granted this motion.

Approximately four months later, Petitioner filed a motion to reinstate the

dismissed habeas petition. The district court denied the motion to reinstate, and

Petitioner filed the instant federal petition. The district court then denied this

petition as time-barred. The court noted that, even if it tolled the period when

Petitioner’s first habeas petition was pending, a total of 482 untolled days would

still have passed before the instant petition was filed. The court concluded that

Petitioner had not demonstrated extraordinary circumstances warranting equitable

tolling, and the court therefore dismissed the petition as time-barred.

      In his application for a certificate of appealability, Petitioner argues that he

is entitled to equitable tolling because, inter alia, (1) this petition relates back to

his original petition, (2) he relied on the district court’s representation that he

could re-file, (3) he was convicted under an unconstitutional statute and thus is

actually innocent of any crime, and (4) he diligently pursued his claims. As for

Petitioner’s first argument, “a § 2254 petition cannot relate back to a previously

filed petition that has been dismissed without prejudice because there is nothing

for the current petition to relate back to.” Marsh v. Soares, 223 F.3d 1217, 1219

(10th Cir. 2000) (internal quotation marks omitted). As for Petitioner’s second

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argument, the record reflects that the first petition was dismissed without

prejudice to re-filing, but the district court never represented that a re-filed

petition would be free from all potential statutory bars. Moreover, Petitioner’s

apparent ignorance regarding the legal consequences of a dismissal without

prejudice simply does not justify equitable tolling under our precedent. See id. at

1220. As for Petitioner’s third argument, we will not address it because he did

not raise this argument for tolling in the district court. See Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000). Finally, as for Petitioner’s fourth argument, we

note that a petitioner’s diligent pursuit of claims only warrants equitable tolling if

the petitioner also demonstrates that “extraordinary circumstances beyond his

control” caused his failure to comply with the statute of limitations, see Marsh,

223 F.3d at 1220, and we are not persuaded that Petitioner has done so here.

      For the foregoing reasons and for substantially the same reasons stated by

the district court, we conclude that Petitioner has not shown that reasonable

jurists would debate whether the district court was correct in dismissing the

petition as time-barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We

therefore DENY the application for a certificate of appealability and DISMISS

the appeal. All other pending motions are also DENIED.

                                                 ENTERED FOR THE COURT


                                                 Monroe G. McKay
                                                 Circuit Judge

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