                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 9, 2010
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 SAMUEL TRUJILLO,

          Petitioner-Appellant,
 v.                                                      No. 09-6234
 GREG PROVINCE, Warden,                          (D.C. No. CV-09-00625-R)
                                                       (W. D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.


      Samuel Trujillo, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) so that he might challenge the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. Exercising

jurisdiction pursuant to 28 U.S.C. § 2253(c)(1), we DENY the request for a COA

and DISMISS Trujillo’s appeal.

                                         I.

      In June 2003, an Oklahoma jury convicted Trujillo of Trafficking in a

Controlled Substance (Methamphetamine) After Conviction of Two or More Drug



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Related Felonies in violation of Okla. Stat. tit. 63, § 2-415(D)(3). Trujillo was

sentenced to life imprisonment without the possibility of parole. On January 18,

2005, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Trujillo’s

conviction and sentence on direct appeal. On February 7, 2005, Trujillo sought

leave to file a pro se petition for rehearing of his direct appeal. The OCCA

denied Trujillo’s motion on February 18, 2005, noting that pursuant to Rule 3.14

of the Rules of the Oklahoma Court of Criminal Appeals, petitions for rehearing

must be filed “by the attorney of record.” See ROA, Vol. 1, at 96-97. Trujillo

then filed a document with the OCCA which was captioned as a Petition for

Review With Order to Recall Mandate. See id. at 98-102. In response, however,

the clerk advised Trujillo that “the mandate is a final order and nothing else can

be filed.” See id. at 104. Thus, Trujillo never actually filed a petition for

rehearing for the OCCA to consider on the merits. Accordingly, his conviction

became final and the one-year period in which he had to file his § 2254 petition

began to run on April 18, 2005, when the ninety-day period he had to file a

petition for writ of certiorari in the United States Supreme Court regarding his

direct appeal expired. See 28 U.S.C. § 2244(d)(1)(A); Jimenez v. Quarterman, –

U.S. –, 129 S. Ct. 681, 686 (2009) (“[I]t was not until . . . time for seeking

certiorari review in this Court expired, that petitioner’s conviction became ‘final’

. . . under § 2244(d)(1)(A).” (quotation omitted)).

      On May 25, 2006, more than one year after his conviction had become

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final, Trujillo filed an application for state post-conviction relief. The state

district court denied his application on August 16, 2006. The OCCA then granted

Trujillo an out-of-time appeal, but ultimately affirmed the denial of state post-

conviction relief on February 17, 2009. Almost four months later, on June 12,

2009, Trujillo filed his § 2254 petition in the federal district court alleging six

grounds for relief including, inter alia, ineffective assistance of counsel,

prosecutorial misconduct, and/or cumulative error.

      The respondent moved to dismiss Trujillo’s petition, arguing that it was

untimely filed. After receiving Trujillo’s response, the magistrate judge prepared

a Report and Recommendation which the district court adopted in its entirety, and

which concluded both that Trujillo’s petition is time barred under 28 U.S.C. §

2244(d)(1)(A) and that he is not entitled to equitable tolling. The district court

then denied Trujillo’s request for a COA.

                                          II.

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

COA is a jurisdictional prerequisite to our review of the dismissal of a § 2254

petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711, 713

(10th Cir. 2006). However, we will issue a COA only if the petitioner has made a

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

2253(c)(2). Where, as here, the district court dismisses a petition on procedural

grounds, in order to make such a showing, the petitioner “must demonstrate . . .

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that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” See Clark, 468 F.3d at 713 (citing Slack v. McDaniel,

529 U.S. 473, 484 (2000)). In determining whether Trujillo has made such a

showing, “[w]e review the district court’s factual findings for clear error and its

legal conclusions de novo.” Id. at 714.

      Because Trujillo’s § 2254 petition was filed more than one year after his

conviction became final, there is no doubt that it was untimely. See 28 U.S.C. §

2244(d)(1)(A). Moreover, because Trujillo’s state post-conviction petition was

also filed more than one year after his conviction became final, it is clear that the

statutory tolling of § 2244(d)(2) is inapplicable. AEDPA’s one-year limitation

for § 2254 petitions is, however, nonjurisdictional, and thus, it is also subject to

equitable tolling in certain “rare and exceptional circumstances.” See Laurson v.

Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). Because, in pursuit of a COA,

Trujillo has abandoned his claims relating to actual innocence, in order to be

entitled to equitable tolling, he must demonstrate “both extraordinary

circumstances preventing timeliness and diligent pursuit of his claim.” See Clark,

468 F.3d at 714.

      Trujillo has provided a time line which meticulously details his pursuit of

both appellate and post-conviction relief. It appears that Trujillo believes that

this document demonstrates that through no fault of his own, he was unable to file

his state post-conviction petition in time to toll the statute of limitations on his §

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2254 petition pursuant to § 2244(d)(2), and accordingly, that he is entitled to

equitable tolling. However, the magistrate judge’s Report and Recommendation

concluded that even in light of his time line, Trujillo “failed to demonstrate any

extraordinary circumstances beyond his control that prevented him from timely

filing his petition.” ROA, Vol. 1, at 303. We agree.

      Indeed, Trujillo’s time line appears to indicate that his inability to avail

himself of statutory tolling was the result of the fact that he did nothing to pursue

his post-conviction claims in the more than six months between March 7, 2005

and September 19, 2005, or the more than six months between November 9, 2005

and May 25, 2006, see Attachment to Aplt.’s Op. Br. at 2-3, and the fact that he

lost time by mistakenly seeking leave to file a pro se petition for rehearing of his

direct appeal. Moreover, we note that Trujillo’s time line also indicates that he

did nothing to pursue his federal post-conviction claims in the nearly four-month

period between the time the OCCA affirmed his denial of state post-conviction

relief on February 17, 2009, and the time he filed his deficient § 2254 petition on

June 9, 2009. See id. at 9. Based on this record, we conclude that no jurist of

reason would debate the district court’s conclusion that Trujillo has “failed to

demonstrate any extraordinary circumstances beyond his control that prevented

him from timely filing his petition,” see ROA, Vol. 1, at 303, and that

accordingly, he is not entitled to equitable tolling.

      As a final note, because, absent a COA, we lack jurisdiction to entertain

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Trujillo’s appeal, we cannot consider his contention that “AEDPA is an

unreasonable suspension of the right to seek habeas corpus relief, contrary to

Article III of the U.S. Constitution.” See Aplt. Op. Br. at 3.

                                         III.

      Trujillo’s request for a COA is DENIED and this matter is DISMISSED.



                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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