                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 20 2004
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RAMIRO RUIZ,

        Petitioner - Appellant,
                                                        No. 04-6004
 vs.                                              (D.C. No. 03-CV-963-A)
                                                        (W.D. Okla.)
 RON WARD; STATE OF
 OKLAHOMA,

        Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


       Mr. Ruiz, a state inmate appearing through counsel, seeks to appeal from

the district court’s order, dismissing his habeas action as barred by the one-year

limitation period in 28 U.S.C. § 2244(d)(1). For this court to have jurisdiction

over Mr. Ruiz’s appeal, a certificate of appealability (“COA”) must be granted.

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We

interpret Mr. Ruiz’s notice of appeal as a renewed application for a COA. Fed. R.

App. P. 22(b)(2).

       Because the district court’s dismissal was based upon procedural grounds,

Mr. Ruiz must demonstrate that reasonable jurists would find it debatable whether
the district court’s procedural ruling was correct, and whether his habeas petition

makes a substantial showing of the denial of a constitutional right. Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      In 1996, Mr. Ruiz was convicted in Oklahoma state court of drug

trafficking and sentenced to 50 years imprisonment. On April 28, 1997, his

conviction was upheld on direct appeal by the Oklahoma Court of Criminal

Appeals (“OCCA”). Mr. Ruiz did not seek review by the United States Supreme

Court, thus his conviction became final for purposes of the one-year limitation

period 90 days later, or July 27, 1997. See Locke v. Saffle, 237 F.3d 1269, 1272-

73 (10th Cir. 2001). Mr. Ruiz filed a request for state post-conviction relief on

September 24, 2001, which was denied. On July 17, 2003, Mr. Ruiz filed the

present habeas petition. R. Doc. 1. The magistrate judge recommended the

petition be dismissed as untimely. R. Doc. 12. Mr. Ruiz objected to the

recommendation; however, after conducting a de novo review, the district court

adopted the magistrate judge’s recommendation. R. Doc. 14.

      On appeal, counsel argues the merits of the habeas petition. We have

reviewed the appendix and the complete district court case file and conclude that

the disposition of the district court on the limitations issue is not reasonably

debatable. Mr. Ruiz’s federal petition was filed well after the one-year limitation

period had run; the pendency of his subsequent state-post conviction application


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cannot serve to statutorily toll, 28 U.S.C. § 2244(d)(2), an already expired

limitation period. See May v. Workman, 339 F.3d 1236, 1236-37 (10th Cir.

2003); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). Nor has Mr.

Ruiz demonstrated entitlement to multiple years of equitable tolling. See Gibson

v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

      We DENY the request for COA and DISMISS the appeal.

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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