                                                                                     FILED
                                                                         United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                           Tenth Circuit

                              FOR THE TENTH CIRCUIT                            August 24, 2020
                          _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
    KENNETH R. HEDDLESTEN,

         Petitioner - Appellant,

    v.                                                        No. 20-6102
                                                       (D.C. No. 5:20-CV-00438-R)
    SCOTT CROW, Director,                                     (W.D. Okla.)

         Respondent - Appellee.
                        _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY *
                     _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________

         Petitioner, an Oklahoma state prisoner proceeding pro se, filed a habeas petition

pursuant to 28 U.S.C. § 2254 in the Western District of Oklahoma. Therein, he alleged:

(1) he received ineffective assistance of counsel during his state criminal and appellate

proceedings; (2) the judge who presided over his criminal proceedings should have

recused; (3) the prosecuting attorney was biased; and (4) his sentence is in violation of ex

post facto laws. Thereafter, the magistrate judge issued a Report and Recommendation,

which sua sponte recommended that the district court dismiss the habeas petition as

untimely.      After overruling Petitioner’s objections to the magistrate judge’s



*
  This order is not binding precedent except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
recommendation, the district court adopted the recommendation in its entirety, dismissed

Petitioner’s habeas application as time-barred, and denied a certificate of appealability

(“COA”). Now, Petitioner seeks a COA from this court.

       If the district court dismisses a habeas petition on procedural grounds without

reaching the petitioner’s underlying constitutional claims, a COA will issue when the

petitioner shows “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right” and “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.”       Slack v.

McDaniel, 529 U.S. 473, 478 (2000). The petitioner must satisfy both parts of this

threshold inquiry before we will hear the merits of the appeal. Gibson v. Klinger, 232 F.3d

799, 802 (10th Cir. 2000).

       For the reasons explained below, no reasonable jurist could conclude the district

court’s procedural ruling was incorrect. Petitioner’s claims are untimely under 28 U.S.C.

§ 2244(d), and he is not entitled to statutory or equitable tolling. Therefore, exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Petitioner’s application for a

COA and dismiss this appeal.

                                          ***

      A petitioner must generally seek habeas relief within one year from “the date on

which the judgment became final by the conclusion of direct review or the expiration of

the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). In this case, Petitioner’s

convictions became “final” on April 11, 2011, when the time for Petitioner to seek

certiorari review with the United States Supreme Court expired. See Locke v. Saffle, 237

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F.3d 1269, 1271 (10th Cir. 2001) (holding that a judgment becomes final when the

Supreme Court denies review, or if no petition for certiorari is filed, after the time for filing

such petition has passed). Thus, absent statutory or equitable tolling, Petitioner must have

filed his habeas petition by April 12, 2012. See 28 U.S.C. § 2244(d)(1)(A). Petitioner did

not file this action until May 2, 2020—more than eight years after the one-year limitations

period expired. Accordingly, Petitioner’s habeas application is untimely unless he is

entitled to statutory or equitable tolling.

       Turning first to statutory tolling, the one-year limitations period will be tolled during

the time in which “a properly filed application for State post-conviction or other collateral

review” is pending. 28 U.S.C. § 2244(d)(2). In this case, Petitioner did not file for state

post-conviction review until January 3, 2013—more than six months after the one-year

limitations period expired. Thus, Petitioner is not entitled to statutory tolling.

       With respect to equitable tolling, we will toll a petitioner’s otherwise untimely

claims in “rare and exceptional circumstances.” See Burger v. Scott, 317 F.3d 1133, 1141

(10th Cir. 2003) (quoting Gibson, 232 F.3d at 808). A petitioner may be entitled to

equitable tolling if he shows: “(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way” of timely filing.                Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005).

       Here, Petitioner’s sole claim to equitable tolling arises from his counsel’s allegedly

deficient performance.      Petitioner suggests counsel did not properly investigate his

constitutional claims nor present them on direct review. Petitioner thus contends the one-



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year time bar must be excused because no court has reviewed “all constitutional issues

related to [his] conviction[s].”

       Petitioner’s claim for equitable tolling is without merit. His argument regarding

counsel’s allegedly deficient performance goes to the merits of his habeas petition—it does

not justify his eight-year delay in filing. See Vue v. Dowling, 716 F. App’x 749, 752 (10th

Cir. 2017) (unpublished) (requiring a petitioner to “provide sufficient evidence that his

lawyer’s purported negligence prevented him from filing a habeas application within the

one-year limitations period”). Petitioner does not explain why counsel’s failure to raise

certain issues on appeal impacted his ability to seek § 2254 relief, and from our independent

review, it did not. The district court thus correctly concluded Petitioner is not entitled to

equitable tolling.

                                            ***

       For these reasons, no reasonable jurist could conclude the district court’s procedural

ruling was incorrect. Petitioner’s claims are time-barred, and he is not eligible for statutory

or equitable tolling. We therefore deny Petitioner’s application for a COA and dismiss this

appeal. Petitioner’s motion to proceed in forma pauperis is granted.


                                               Entered for the Court


                                               Bobby R. Baldock
                                               Circuit Judge




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