                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       July 3, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 CRA IG M BRY AN T,
              Petitioner-Appellant,                      No. 07-3028
 v.                                               (D.C. No. 06-CV-3331-SAC)
 STA TE OF K A N SA S; PA U L                             (D . Kan.)
 M ORRISO N, * Attorney General of
 Kansas,
              Respondents-Appellees.



                                      OR DER **


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      In this pro se § 2254 appeal, Petitioner challenges his state court conviction

on three counts of first-degree murder. The district court initially determined that

the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1) had expired

and ordered Petitioner to show cause why his request for habeas relief should not

be dismissed on that ground.



      *
         On January 8, 2007, Paul M orrison became the Attorney General for the
State of Kansas. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure 43(c)(2), M r. M orrison is substituted for Phill Kline as a
Respondent in this case.
      **
         This order is not binding precedent, except under the doctrines of law of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.
      In response, Petitioner argued that because the Kansas state courts

entertained his post-conviction motion for relief under Kansas Statute § 60-

1507(f)(2), which extends the State’s one-year time limitation for state habeas

relief where necessary “to prevent a m anifest injustice,” the federal courts should

similarly apply § 2244(d)(1) in order to “harmonize” the two statutes of

limitations. 1 Petitioner also argued that his post-conviction discovery motion

should have tolled the ninety-day period for seeking certiorari from the United

States Supreme Court even though final judgment was entered by the Kansas

Supreme Court. The district court rejected both these arguments and denied

Petitioner’s habeas motion as well as his motion for a certificate of appealability.

      Petitioner must obtain a certificate of appealability in order to challenge the

district court’s denial of his habeas petition. See Montez v. M cKinna, 208 F.3d

862, 867 (10th Cir. 2000). To obtain a certificate of appealability, Petitioner

must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2000). In order to meet this burden, Petitioner must

demonstrate “that reasonable jurists could debate w hether (or, for that matter,

agree that) the petition should have been resolved 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) (quotation omitted).

      Petitioner makes no argument on appeal as to why the district court’s denial


      1
       The state district court denied the motion, and the state court of appeals
affirmed the denial.
for statute of limitations reasons is incorrect. N or do we believe that it is.

Petitioner’s murder convictions became final in June 2002. He did not file this §

2254 appeal until well after the one-year limitations period of § 2244(d)(1) had

passed. In addition, because he did not file his § 60-1507(f)(2) motion until

August 2003, also after expiration of the time limits set by § 2244(d)(1), that

filing had no tolling effect. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th

Cir. 2001). Further, Supreme Court Rule 13(d) makes no provision for tolling the

ninety-day filing period because of discovery motions filed after final judgment

has been entered.

      W e have carefully reviewed Petitioner’s brief, the prior state and federal

judicial decisions pertaining to Defendant’s conviction, and the record on appeal.

Nothing in these materials or Petitioner’s filing raises an issue which meets our

standard for the grant of a certificate of appealability. Therefore, we DENY

Petitioner’s request for a certificate of appealability and DISM ISS the appeal.


                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge
