                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAR 21 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JACK S. RUDE,

          Petitioner-Appellant,

 v.                                                            No. 00-8084
                                                                (D. Wyo.)
 STATE OF WYOMING; WYOMING                               (D.Ct. No. 00-CV-111-J)
 DEPARTMENT OF CORRECTIONS STATE
 PENITENTIARY WARDEN, a/k/a Vance
 Everett, in his official capacity; WYOMING
 ATTORNEY GENERAL,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


      *
          This order and judgment is not binding precedent except under the doctrines of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 and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Jack S. Rude, a state prisoner appearing pro se, appeals the district court’s

decision dismissing, as untimely, his petition filed pursuant to 28 U.S.C. § 2254.

We deny Mr. Rude’s request for a certificate of appealability, and dismiss his

appeal.



      Following Mr. Rude’s guilty plea to first degree murder of his daughter-in-

law and conspiracy with his son to commit first degree murder, a state district

court sentenced Mr. Rude to two life sentences to run concurrently.       See Rude v.

State, 851 P.2d 15, 19-20 (Wyo. 1993). On April 26, 1993, the Wyoming

Supreme Court affirmed the first degree murder conviction and reversed and

remanded the conspiracy conviction. 1 See id. at 19-20.



      On August 21, 1998, Mr. Rude filed his first pleading seeking state post-

conviction review, which the state district court denied on August 28, 1998. On



      1
          The record contains no information on the status of Mr. Rude’s reversed and
remanded conspiracy conviction. From a review of the record, it is unclear whether Mr.
Rude’s state and federal post-conviction proceedings challenge only his murder
conviction. However, we will consider the timeliness of Mr. Rude’s federal petition with
respect to only his murder conviction because Mr. Rude has failed to submit into the
record relevant information on his reversed and remanded conspiracy conviction for
either the district court’s or our review. See United States v. Svacina, 137 F.3d 1179,
1187 n.9 (10th Cir. 1998) (holding we will not review a contention if the record is
insufficient to permit a proper assessment of the issue).


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September 8, 1998, Mr. Rude filed an appeal to the Wyoming Supreme Court.

Shortly thereafter, and prior to a decision by the Wyoming Supreme Court, Mr.

Rude filed his first federal habeas corpus petition pursuant to § 2254. On August

17, 1999, the federal district court granted Mr. Rude’s motion to withdraw his

federal petition pending exhaustion of his state remedies and dismissed his

petition without prejudice. On May 25, 1999, the Wyoming Supreme Court

dismissed Mr. Rude’s post-conviction appeal. Thereafter, Mr. Rude filed a state

petition for writ of habeas corpus, which the state district court dismissed on

November 29, 1999. On May 2, 2000, the Wyoming Supreme Court denied Mr.

Rude’s petition for a writ of habeas corpus. Finally, on June 1, 2000, Mr. Rude

filed the § 2254 petition at issue in the instant appeal.



      Pursuant to 28 U.S.C. § 2244(d)(1), the federal district court determined the

limitation period for filing Mr. Rude’s § 2254 petition expired on April 23, 1997.

Because none of Mr. Rude’s state and federal post-conviction proceedings were

filed within the limitation period, the district court determined they did not toll

the limitation period under § 2244(d)(2). In addition, the district court

determined no equitable tolling occurred because, as early as 1992, Mr. Rude had

full knowledge of the factual predicate for his claims, including an assertion his

counsel had a conflict of interest concerning an adverse witness. For these


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reasons, the district court denied Mr. Rude’s petition.



      On appeal, Mr. Rude renews his argument that equitable tolling is required

because his counsel, his co-defendant’s counsel, the prosecution and the judge

“concealed” the fact that one of Mr. Rude’s trial attorneys had an impermissible

conflict of interest because he also represented an adverse witness. Even though

that attorney withdrew from Mr. Rude’s criminal case, Mr. Rude contends he did

not learn of this concealment until “years later.” For the first time on appeal, Mr.

Rude also contends he did not discover his attorney lied to him about the

conditions of his son’s plea bargain until “later.”



      “In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo.” Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999),

cert. denied, 528 U.S. 1120 (2000). We recognize the one-year statute of

limitations may be equitably tolled, but only “when an inmate 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.), cert. denied, ___ S. Ct. ___, 2001 WL 17827 (U.S. Feb.

26, 2001) (No. 00-7631).


                                          -4-
      Applying our standard of review and the principles applied for equitable

tolling, we agree with the district court’s holding that Mr. Rude’s petition is

untimely and that no equitable tolling applies. As the district court determined, as

early as 1992, Mr. Rude had full knowledge of the factual predicate for the

conflict of interest claim, when Mr. Rude claimed he “heard” that a member of

his defense team had previously advised an adverse witness, and immediately

asked his other attorney, “Isn’t there something wrong with that?” Under the

circumstances presented, it is clear Mr. Rude has not shown he diligently pursued

his conflict of interest claim after obtaining knowledge of the factual predicate

underlying that claim in 1992.



      As to Mr. Rude’s claim his attorney lied to him regarding the conditions of

his son’s plea bargain, we generally will not consider an issue not raised before

the district court. See Moore v. Gibson, 195 F.3d 1152, 1180-81 (10th Cir. 1999),

cert. denied, 120 S. Ct. 2206 (2000). However, even if we considered his claim,

Mr. Rude fails to establish when he made the alleged discovery, stating merely

that it did not occur until “later.” As a consequence, the record is insufficient to

permit a proper assessment of the timeliness of Mr. Rude’s petition with respect

to this issue. See Svacina, 137 F.3d at 1187 n.9.




                                          -5-
      In order for this court to grant a certificate of appealability, Mr. Rude must

make a substantial showing of the denial of a constitutional right as required

under 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on

procedural grounds, as it did here, without reaching the underlying constitutional

claim, “a [certificate of appealability] should issue when the prisoner shows, at

least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, the district court’s

procedural ruling is clearly not debatable.



      Accordingly, for the reasons stated herein, and for substantially the same

reasons in the district court’s October 31, 2000 Order Dismissing Petition For

Writ of Habeas Corpus, we deny Mr. Rude’s request for a certificate of

appealability and DISMISS his appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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