                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           May 23, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 DANNY STANLEY,

              Petitioner - Appellant,                     No. 05-3100
       v.                                        (D.C. No. 05-CV-3019-SAC)
 DAVID R. McKUNE, Warden,                                 (D. Kansas)
 Lansing Correctional Facility;
 ATTORNEY GENERAL OF THE
 STATE OF KANSAS,

              Respondents - Appellees.


                                        ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Pro se Applicant Danny Stanley filed an application for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States District Court for the District

of Kansas on January 14, 2005. He is currently serving a 144-month sentence for

his 1996 conviction in Kansas state court. The application raises claims of

ineffective assistance of counsel and double jeopardy.

      The district court dismissed Applicant’s application as untimely when he

failed to show cause, as required by the district court’s January 20, 2005, order,

for his failure to file his application within the one-year limitations period

imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
See 28 U.S.C. § 2244(d)(1). Applicant filed a notice of appeal, requested the

district court to issue a certificate of appealability (COA), see 28 U.S.C.

§ 2253(c)(1) (requiring a COA to appeal), and moved for leave to proceed in

forma pauperis (IFP). The district court granted the IFP motion but denied the

COA application. Applicant seeks from this court a COA allowing him to

proceed with his habeas application. Id. Because the district court correctly

dismissed the habeas application as time-barred, we deny the application for a

COA.

       Under the AEDPA “ [a] certificate of appealability may issue . . . only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition

on procedural grounds without reaching the prisoner’s underlying constitutional

claim, a COA 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). “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the [applicant]

should be allowed to proceed further.” Id. We recognize that in determining


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whether to issue a COA, a “full consideration of the factual or legal bases

adduced in support of the claims” is not required. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). Instead, the decision must be based on “an overview of the

claims in the habeas petition and a general assessment of their merits.” Id.

      The AEDPA imposes a one-year time limit for state prisoners to file an

application for habeas corpus once the state conviction becomes final. 28 U.S.C

§ 2244(d)(1). Because Applicant’s January 1996 conviction became final prior to

the passage of AEDPA, he had one year from its effective date of April 24, 1996,

to file his habeas corpus application. Adams v. LeMaster, 223 F.3d 1177, 1180

(10th Cir. 2000). Applicant filed no federal claim for relief until his January 14,

2005, application for habeas corpus. Although AEDPA’s one-year limitations

period may be tolled during the pendency of state postconviction review, 28

U.S.C. § 2244(d)(2), Applicant filed no pleadings for review in state court until

June 13, 2002 ( a petition for writ of mandamus).

      Applicant argues that AEDPA’s time limitation should be equitably tolled

because his attorney failed to file a direct appeal despite Applicant’s instruction to

do so. But equitable tolling is appropriate “only in rare and exceptional

circumstances,” such as “when a prisoner is actually innocent,” or “when an

adversary's conduct—or other uncontrollable circumstances—prevents a prisoner

from timely filing, or when a prisoner actively pursues judicial remedies but files a


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defective pleading during the statutory period.” Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000) (internal quotation marks and citations omitted). An

applicant must be diligent in filing his own claims, and misplaced reliance on an

attorney does not explain why Applicant did not file his first postconviction

pleading until six years after his conviction.

      Although Applicant is correct in his assertion that an attorney’s failure to

file a requested appeal constitutes ineffective assistance of appellate counsel, Roe

v. Flores-Ortega, 528 U.S. 470, 477 (2000), he is incorrect in assuming that

counsel’s ineffectiveness is always a “rare and exceptional circumstance” worthy

of equitable tolling. Applicant has not alleged circumstances that prevented him

from discovering his counsel’s failure to file the direct appeal for the six years

from the date of his conviction to the filing of his first postconviction pleading. It

cannot be said that Applicant has diligently pursued his federal claims.

      For the same reasons, Applicant cannot obtain the benefit of 28 U.S.C

§ 2244(d)(1)(D), which allows for statutory tolling of the one-year limitations

period until “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” It

should not have taken Applicant a matter of years to realize that his attorney had

failed to pursue the allegedly requested appeal.




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      Because the district court’s procedural ruling would not be debatable among

jurists of reason, we DENY Applicant’s application for a COA and DISMISS the

appeal.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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