                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     May 1, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 STEVEN JACOBSEN,

       Petitioner - Appellant,
                                                        No. 07-6282
 v.                                              (D.C. No. 5:07-CV-01004-R)
                                                        (W.D. Okla.)
 JUSTIN JONES, Director,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.


      Petitioner-Appellant Steven Jacobsen, a state inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal from the district

court’s denial of his habeas petition pursuant to 28 U.S.C. § 2254. Because Mr.

Jacobsen has failed to demonstrate that it is reasonably debatable whether the

district court’s procedural ruling dismissing his petition as untimely is correct,

see Slack v. McDaniel, 529 U.S. 473, 483–84 (2000), we deny a COA and dismiss

the appeal.

      The district court adopted the magistrate judge’s determination that Mr.

Jacobsen’s application was not filed within the applicable one-year statute of

limitations, see 28 U.S.C. § 2244(d)(1)(A), and that he was not entitled to
equitable tolling. On appeal, Mr. Jacobsen argues (1) ineffective assistance of

counsel; (2) newly discovered evidence; (3) the district court lacked jurisdiction;

and (4) his plea was not knowing and voluntary. Before we address the merits of

his appeal, we must consider whether Mr. Jacobsen timely filed his petition. In

that regard, Mr. Jacobsen argues that the district court that considered his first

habeas petition erred when it dismissed that petition without prejudice instead of

granting a stay and abeyance. We disagree. The Supreme Court has held that a

district court has discretion whether to grant a stay and abeyance when a habeas

petitioner has failed to exhaust state remedies. Rhines v. Weber, 544 U.S. 269,

276–79 (2005). Stay and abeyance is only available in limited circumstances. Id.

at 277. Regardless, this argument should have been raised on appeal from the

dismissal of the first habeas petition.

      We now consider whether the present petition was otherwise timely filed.

The limitations period may be equitably tolled if a petitioner “diligently pursues

his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Mr. Jacobsen does not contest that his conviction

became final on January 17, 2002. He filed the current habeas petition on

September 12, 2007. Certainly some of this period should be statutorily tolled

while his state post-conviction application was pending. See 28 U.S.C. §

2244(d)(2). However, Mr. Jacobsen is not entitled to equitable tolling because he

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failed to diligently pursue his claims over the almost six-year period and points to

no extraordinary circumstances beyond his control. The dismissal of his first

federal habeas petition without prejudice did not toll the running of the one-year

limitation. See Duncan v. Walker, 533 U.S. 167, 181–82 (2001) (holding an

application for federal habeas review does not statutorily toll the limitations

period under § 2244(d)(2)).

      Because a COA is a jurisdictional prerequisite to our review, Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003), it will issue “only if the applicant has made a

substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2). Mr. Jacobsen has failed to demonstrate that it is reasonably debatable

whether the district court’s procedural ruling dismissing his petition is correct.

See Slack, 529 U.S. at 483–84.

      We DENY IFP status, DENY the motion for a COA, and DISMISS the

appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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