                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         August 17, 2005
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                              Clerk

 LUTTRELL MAURICE WILLIAMS,

                  Petitioner-Appellant,                  No. 05-6058
          v.                                           (W.D. of Okla.)
 RANDALL WORKMAN, Warden,                        (D.C. No. CV-04-1287-HE)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                 *




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




      Appellant Luttrell Williams, an Oklahoma prisoner appearing pro se, seeks

a certificate of appealability (COA) allowing him to appeal the district court’s

order denying relief pursuant to 28 U.S.C. § 2254. Williams pleaded guilty to

first degree murder in Oklahoma and was sentenced to life in prison without

parole. In his petition for habeas corpus, he argued that his sentence, which was


      *
         This order is not binding precedent, except under the doctrines of law of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.
imposed based upon his guilty plea, violated     Blakely v. Washington , 542 U.S. 296

(2004). Because Williams has not made a substantial showing of a denial of a

constitutional right, 28 U.S.C. § 2253(c)(2), we deny COA and dismiss the

appeal.

                                       Analysis

      The parties are familiar with the facts of the case and we need not repeat

them here. It is well settled that a petitioner is not entitled to receive a COA

unless he can make “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), by demonstrating the issues raised are debatable among

jurists, a court could resolve the issues differently, or that the questions presented

deserve further proceedings.   See Slack v. McDaniel , 529 U.S. 473, 483 (2000).

       Following his April 23, 1993 sentencing, Williams did not file a direct

appeal. On June 15, 2004, he filed a state petition for post-conviction relief,

along with a request to file out of time. The state trial court denied his

application on August 24, 2004. Williams appealed to the Oklahoma Court of

Criminal Appeals, which affirmed the lower court’s decision. On October 8,

2004, Williams filed the instant petition for writ of habeas corpus.

      The Antiterrorism and Effective Death Penalty Act of 1996 sets a clear one-

year period of limitations for habeas petitioners in state custody. The time limit

begins to run on “the date on which the judgment became final by the conclusion


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of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). In cases where a conviction became final before AEDPA took

effect on April 24, 1996, the one-year limitation period begins on the first

effective date of AEDPA.      See Preston v. Gibson , 234 F.3d 1118, 1120 (10th Cir.

2000). Accordingly, in the absence of a tolling event, Williams would have

needed to file the instant petition for writ of habeas corpus within one year of

April 24, 1996.

       1. Statutory Tolling

       As Williams points out, the limitation period can be tolled for a “properly

filed application for state post-conviction or other collateral review.” 28 U.S.C.

§ 2244(d)(2). However, Williams did not adhere to the time limitations

Oklahoma places upon state petitions for post-conviction relief, and Oklahoma

courts denied his motion to file out of time.         See Fisher v. Gibson , 262 F.3d 1135,

1142-43 (10th Cir. 2001) (refusing to toll one year limitations period when

petitioner’s state post-conviction application was not filed until after expiration of

the applicable one-year grace period.) Furthermore, the Supreme Court also

recently held that “a petition filed after a time limit, and which does not fit within

any exceptions to that limit, is no more ‘properly filed’ than a petition filed after

a time limit that permits no exception.”        Pace v. DiGuglielmo , 125 S. Ct. 1807,




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1812 (2005). Accordingly, we agree with the district court that no statutory

tolling was appropriate.

      2. Equitable Tolling

      Williams is also not entitled to equitable tolling. Such relief is limited to

“rare and exceptional circumstances.”    Gibson v. Klinger , 232 F.3d 799, 808 (10th

Cir. 2000). As the magistrate judge explained, to justify equitable tolling, the

petitioner must demonstrate “that the failure to timely file was caused by

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

1217, 1220. Williams has failed to meet this standard.

      3. Newly Recognized Constitutional Rights

      Finally, Williams argues his one-year limitation period should begin from

the “date on which [a new] constitutional right asserted was initially recognized

by the Supreme Court, if the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review.” 28 U.S.C.

§ 2244(d)(1)(C). However, we have clearly held that         Blakely does not apply

retroactively to sentences, such as Williams’s, which were already final at the

time Blakely was decided on June 24, 2004.         See United States v. Price   , 400 F.3d

844 (10th Cir. 2005).




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      Accordingly, Williams’s petition was correctly dismissed by the district

court and we DENY COA and DISMISS his appeal. We GRANT            Williams’s

motion to proceed in forma pauperis.

                                              Entered for the Court

                                              Timothy M. Tymkovich
                                              Circuit Judge




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