                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 2, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 RO BERT J. CLEM EN S,

          Petitioner-A ppellant,
 v.                                                      No. 07-5004
 JESSE T. SUTTER,                                  (D.C. No. CV-06-014-K)
                                                      (N. D. Oklahoma)
          Respondent-Appellee.




           OR DER DENY ING A CERTIFICATE O F APPEALABILITY *


Before BRISCO E, M cK AY, and M cCO NNELL, Circuit Judges.


      Robert J. Clemens, a state prisoner appearing pro se, seeks to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus

as time-barred. The matter is before this court on Clemens’ request for a

certificate of appealability (COA). Our jurisdiction arises under 28 U.S.C. §§

1291 and 2253(a), and, because no “jurist[] of reason could conclude that the

District Court’s dismissal on procedural grounds was . . . incorrect,” Slack v.

M cD aniel, 529 U.S. 473, 485 (2000), we deny a COA and dismiss the matter.

      On April 1, 2002, Clemens pled guilty in Oklahoma state court to



      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
manufacturing methamphetamine and was sentenced to twenty-one years of

imprisonment. Clemens made no effort to seek modification of his sentence until

January 22, 2003, when he filed a motion for judicial review, which was denied

the next day. Thereafter, on April 13, 2004, Clemens first challenged the validity

of his conviction by filing an application for state post-conviction relief seeking

an appeal out of time. That application was denied on M ay 12, 2004, and the

Oklahoma Court of Criminal Appeals affirmed the state district court’s denial of

post-conviction relief on July 23, 2004. On July 14, 2005, Clemens filed a

petition for writ of habeas corpus in state district court, which was denied on

August 15, 2005. Then, on January 6, 2006, Clemens filed a petition under 28

U.S.C. § 2254 in federal court alleging numerous constitutional violations,

including ineffective assistance of counsel, and asserting actual innocence. The

federal district court denied Clemens’ petition as time-barred.

      Clemens has appealed the denial of his § 2254 petition, and has filed an

application for a COA. A COA is a jurisdictional prerequisite to Clemens’

pursuit of this appeal. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). As such,

we construe Clemens’ appellate brief in support of his notice of appeal as

additional argument in support of his application for a COA. A COA may be

issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This requires Clemens to show

“that reasonable jurists could debate whether (or, for that matter, agree that) the

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petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack

529 U.S. at 484 (quotation omitted). W hen, as here, the district court’s ruling is

based on procedural grounds, the petitioner must demonstrate 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.” Id. at 478.

      In pertinent part, the Antiterrorism and Effective Death Penalty Act

imposes a one-year statute of limitations for § 2254 petitions, beginning on the

latest of (1) the date the judgment becomes final, (2) the date on which an

impediment created by the state in violation of the Constitution is removed, or (3)

the date on which the factual predicate of the claims presented could have been

discovered through due diligence. 28 U.S.C. § 2244(d)(1)(A)-(B), (D). Because

Clemens failed to file a motion to withdraw his guilty plea, his conviction became

final on April 11, 2002, ten days after the entry of his judgment and sentence.

See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.

18 (requiring defendant to file an application to withdraw guilty plea within ten

days of the judgment and sentence in order to commence an appeal from any

conviction on a plea of guilty). Thus, Clemens had one year, from April 11, 2002

to April 11, 2003, to challenge his conviction. Clemens did not file his § 2254

petition until January 6, 2006, well after the one-year limitations period had

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expired.

         Insofar as Clemens claims the one-year limitations period began at some

point after April 11, 2002, we disagree. Clemens argues that any procedural

default of the claims in his § 2254 petition is excusable under the cause and

prejudice test of Coleman v. Thompson, 501 U.S. 722 (1991). This argument is

without merit. Clemens does not allege that he was unlawfully prevented from

filing a timely § 2254 petition, nor does he claim that despite his due diligence he

was unable to discover and seek timely redress of the issues he now attempts to

raise.

         Nor is Clemens eligible for statutory tolling while his state post-conviction

claims were pending. Although “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of

limitation,” 28 U.S.C. § 2244(d)(2), Clemens did not seek any post-conviction

relief until April 13, 2004, more than a full year beyond the April 11, 2003

deadline. 1 A collateral petition filed in state court after the limitations period has



         1
         As noted, C lem ens also sought judicial review under O kla. Stat. tit. 22, §
982a. Section 982a permits a state sentencing court to modify a sentence within
twelve months after imposition. Such motions seek discretionary review and their
denial is not appealable. As a result, motions to modify a sentence do not constitute
post-conviction proceedings that toll the limitations period. See, e.g., Bridges v.
Johnson, 284 F.3d 1201, 1203-04 (11th Cir. 2002) (finding petitioner’s application
before state sentence review panel seeking discretionary and non-appealable review
                                                                       (continued...)

                                           -4-
expired no longer serves to toll the statute of limitations. See Fisher v. Gordon,

262 F.3d 1135, 1142-43 (10th Cir. 2001). Thus, Clemens’ post-conviction

proceeding commenced after the expiration of the limitations period did not toll

the limitations period. For the same reason, Clemens’ state habeas corpus

proceeding filed on July 14, 2005 did not toll the limitations period, because it

was filed more than two years after the expiration of the federal limitations

period.

      W e also agree with the district court that equitable tolling is not applicable

here. Equitable tolling “is only available w hen an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

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

1217, 1220 (10th Cir. 2000). Clemens has not shown any extraordinary

circumstances beyond his control that prevented his filing of a timely petition.

Instead, Clemens implies that any procedural bar to his habeas claims should be

excused to prevent a fundamental miscarriage of justice because he is actually

innocent. To prevail on such a claim, Clemens “must demonstrate that, in light of

all the evidence, it is more likely than not that no reasonable juror would have

convicted him.” Bousely v. United States, 523 U.S. 614, 623 (1998) (citations



      1
       (...continued)
did not constitute post-conviction proceedings tolling the one-year limitations
period). And, even if Clemens’ § 982a petition did toll the limitations period for the
single day it w as pending, his § 2254 petition would still be untimely.

                                         -5-
omitted). He must also “support his allegations of constitutional error with new

reliable evidence – whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence – that was not presented at

trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, Clemens’ claim of actual

innocence is vague, conclusory, and fails to identify evidence affirmatively

demonstrating his innocence. Accordingly, he has not shown the possibility of a

fundamental miscarriage of justice excusing the timeliness bar.

      W e conclude that reasonable jurists would not debate the correctness of the

district court’s procedural ruling. Accordingly, we DENY Clemens’ application

for a COA and DISM ISS this matter.



                                              Entered for the Court


                                              M ary Beck Briscoe
                                              Circuit Judge




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