                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                      December 14, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 BOBBY DEAN SMITH,

                  Petitioner-Appellant,                 No. 05-6205
          v.                                          (W.D. of Okla.)
 RANDY PARKER, Warden, and                       (D.C. No. CV-04-1685-T)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

                  Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Bobby D. Smith, a prisoner in Oklahoma state court,

appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. The Western District of Oklahoma denied his petition as untimely.

Smith now seeks a Certificate of Appealability (COA) as a prerequisite to


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
proceeding on this appeal. Because Mr. Parker has not made a substantial

showing of the denial of a constitutional right, we DENY the COA and DISMISS

the appeal.

                                 BACKGROUND

      On October 3, 2000, Smith pled guilty in Oklahoma state court to attempted

manufacture of a controlled substance. He was sentenced to twenty years in

prison, the statutory minimum under Oklahoma Statutes Title 63, § 2-401.

Effective July 1, 2001, however, this provision was modified, imposing a seven-

year mandatory minimum. 2001 Okla. Sess. Law Serv. Ch. 437 (S.B. 397)

(West). The record indicates that he subsequently sought post-conviction relief in

state court on July 10, 2003, and May 6, 2004. On December 10, 2004, he sought

a writ of habeas corpus in federal court based on the change in § 2-401. The

district court dismissed his petition as untimely, and this appeal followed.

                                    ANALYSIS

      Before an appellant may proceed on an appeal from a denied § 2254

petition, he must receive a COA. 28 U.S.C. § 2253(c)(1). We may issue a COA

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court does not

reach the merits of a § 2254 petition because the claim was procedurally

defaulted, the appellant seeking a COA must also demonstrate “that jurists of


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reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Here, reasonable jurists would not find the district court’s procedural ruling

debatable or wrong. A petitioner may file a habeas petition for one year after “the

date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.” 28 U.S.C.

§ 2244(d)(1)(D). This time is statutorily tolled while a properly filed application

for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). But if the

statute of limitations runs before the petitioner initiates the state proceeding, then

the time is not tolled. See, e.g., Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th

Cir. 2001). The time can also be equitably tolled in “rare and exceptional” cases

where “an inmate diligently pursues his claims and demonstrates that the failure

to timely file was caused by extraordinary circumstances beyond his control.”

Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003) (quoting Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000)).

      Even under the most lenient calculations, there can be no dispute that

Smith’s petition was untimely. His conviction was final on October 13, 2000, ten

days after the judgment was entered in his case. See Fisher, 262 F.3d at 1142.

The Oklahoma amendment on which Smith bases his claim was effective on July

1, 2001, almost a year after his guilty plea. Even assuming that this after-the-fact


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legislative amendment started the one-year clock, Smith’s petition is untimely

because he did not file his federal habeas petition until December 10, 2004. Nor

would his efforts to seek state post-conviction relief toll the statute of limitations,

since he did not file his petition before the July 1, 2002, filing deadline required

under federal law. Finally, he has shown no reason that would justify equitable

tolling.

                                   CONCLUSION

       Reasonable jurists would not find these procedural rulings debatable or

wrong, so we DENY Smith’s application for a COA and DISMISS his appeal.

We also DENY Smith’s motion to appoint counsel.

                                                 Entered for the Court

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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