                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                          FOR THE TENTH CIRCUIT                     December 27, 2017
                          _________________________________
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
WILLIAM ALEXANDER MAY,

          Petitioner-Appellant,                        No. 17-7050
                                             (D.C. No. 6:16-CV-00391-RAW-
v.                                                        KEW)
                                                       (E.D. Okla.)
JOE ALLBAUGH,

          Respondent-Appellee.
                        _________________________________

     ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                  DISMISSING THE APPEAL
                  _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________

      Mr. William May pleaded nolo contendere on state drug charges.

Years later, Mr. May sought habeas relief on grounds that

             he had been told the incorrect sentencing range,

             he had been wrongfully denied an appeal, and

             he had been denied effective assistance of counsel.

The district court dismissed the habeas action as time-barred, and Mr. May

requests a certificate of appealability so that he can appeal. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a certificate of appealability for a state prisoner

to appeal the denial of habeas relief). We deny this request.
      We can issue the certificate if reasonable jurists could debate the

validity of the constitutional claim and the correctness of the district

court’s ruling on timeliness. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In our view, the district court’s ruling is not reasonably debatable.

      The habeas action is subject to a one-year period of limitations. 28

U.S.C. § 2244(d). This period started to run when Mr. May’s conviction

became final. 28 U.S.C. § 2244(d)(1)(A). We thus consider when the

conviction became final. Mr. May entered a plea of nolo contendere on

June 30, 2011, but he did not seek a timely withdrawal of his plea or a

direct appeal. Thus, his conviction became final on August 22, 2011, ten

days after the entry of judgment. See Okla. Ct. Crim. App. R. 4.2(A);

Gordon v. Franklin, 456 F. App’x 739, 742 (10th Cir. 2012) (unpublished).

The one-year period ended on August 23, 2012. See Harris v. Dinwiddie,

642 F.3d 902, 906 n.6 (10th Cir. 2011) (holding that the statutory year

begins to run on the day after the judgment becomes final). But Mr. May

waited over four years, after the end of the limitations period, before filing

a habeas action.

      The limitations period can sometimes be tolled based on a statute or

equity. But Mr. May has not shown a basis for tolling.

      First, Mr. May cannot take advantage of the statutory tolling

provision. This provision applies while a state post-conviction application

is pending. 28 U.S.C. § 2244(d)(2). But Mr. May waited until August 20,

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2013, to seek post-conviction relief. By then, a habeas petition would

already have been over a year late. See Clark v. Oklahoma, 468 F.3d 711,

714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed

within the one year allowed by [§ 2244(d)(1)] will toll the statute of

limitations.”).

      Second, Mr. May did not allege equitable tolling. Generally, a

petitioner may extend the statute of limitations through equitable tolling if

the petitioner establishes: “‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his

way.’” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). But Mr. May has not alleged

equitable tolling either in district court or in our court. Thus, the

limitations period is not equitably tolled.

                                     * * *

      The district court ruling on timeliness was not reasonably debatable.

Thus, we deny the request for a certificate of appealability and dismiss the

appeal.

                                     Entered for the Court




                                     Robert E. Bacharach
                                     Circuit Judge



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