                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 12 2004
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                       Clerk

 KENNETH BROWN,

           Petitioner-Appellant,
 v.                                                           No. 03-7082
 DAYTON POPPEL,                                         (D.C. No. CV-01-321-S)
                                                           (E.D. Oklahoma)
           Respondent-Appellee.




                                   ORDER AND JUDGMENT*


Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.


       Petitioner Kenneth Brown, an Oklahoma state prisoner, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition as untimely filed. We affirm.

                                             I.

       Brown was convicted of first degree murder and sentenced to life without parole

on February 26, 1998. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his

conviction and sentence on July 16, 1999, and there is no indication that he filed a



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
petition for writ of certiorari. Brown filed his first federal habeas petition on June 27,

2000. On September 25, 2000, while that petition was pending, he filed an application

for state post-conviction relief. On December 21, 2000, he moved to voluntarily dismiss

his federal habeas petition without prejudice while he exhausted the claims asserted in his

application for state post-conviction relief. The state court denied post-conviction relief

on January 18, 2001. On March 7, 2001, Brown’s federal habeas petition was dismissed

without prejudice. The OCCA affirmed the denial of post-conviction relief on March 8,

2001.

        Brown filed the current habeas proceeding on June 6, 2001,1 which was dismissed

as untimely. On July 26, 2002, this court reversed the district court’s dismissal and

remanded “for reconsideration of whether equitable tolling [wa]s warranted.” ROA, Doc.

19 at 2. On remand, the district court concluded that Brown had “failed to show the

existence of an extraordinary circumstance beyond his control or diligence in pursuing his

claims,” Id., Doc. 27 at 4, and again dismissed the petition as untimely.

                                               II.

        Brown contends the district court erred in dismissing his petition as untimely. We

review the district court’s dismissal de novo. See Woodward v. Williams, 263 F.3d 1135,

1141 (10th Cir. 2001).

        Congress has established a one-year period of limitations for the filing of an


        1
            The district court used the date that Brown signed the petition.

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application for writ of habeas corpus by a person in custody pursuant to a state court

judgment. See 28 U.S.C. § 2244(d)(1). The one-year limitations period generally begins

running on “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).

“The time a petitioner spends pursuing state post-conviction or other collateral review is

not counted toward this one-year period.” York v. Galetka, 314 F.3d 522, 524 (10th Cir.

2003). “This ‘statutory tolling’ is not available, however, during the time period a prior

federal habeas proceeding is pending.” Id. (emphasis in original).

       The OCCA affirmed Brown’s conviction and sentence on July 16, 1999. He did

not file a petition for writ of certiorari with the United States Supreme Court and,

therefore, his conviction became “final” and the one-year statute of limitations began

running on October 14, 1999. See United States v. Burch, 202 F.3d 1274, 1279 (10th Cir.

2000). The limitations period ran unabated from October 14, 1999, until September 25,

2000, when Brown filed his application for state post-conviction relief. At that point, 347

days had passed. Brown’s state post-conviction proceedings concluded on March 8,

2001, leaving Brown with 18 days, or until approximately March 26, 2001, to file a timely

federal habeas petition. As noted, Brown did not file the current habeas petition until

June 6, 2001, approximately 72 days out of time.

       Brown’s petition cannot be deemed timely unless he is able to establish his

entitlement to equitable tolling of the one-year limitations period. Because the one-year


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limitations period “is not jurisdictional,” it “is subject to equitable tolling in appropriate

cases.” Garcia v. Shanks, 351 F.3d 468, 473 n.2 (10th Cir. 2003). This court, however,

has “limited equitable tolling of the limitations period to rare and exceptional

circumstances.” Id. (internal quotations omitted). Further, equitable tolling “is only

available when an inmate diligently pursues his claims and demonstrates that the failure

to timely file was caused by extraordinary circumstances beyond his control.” Id.

(internal quotations omitted).

       When this court reviewed Brown’s initial appeal, it concluded “the district court

did not fully explore whether Brown was entitled to equitable tolling of the one-year

period of limitations.” ROA, Doc. 19 at 1. In remanding the case, this court instructed

the district court to “consider whether the refiling of Brown’s habeas petition prior to the

Supreme Court’s decision in” Duncan v. Walker, 533 U.S. 167 (2001), “merit[ed] the

application of equitable tolling to his case.” Id. at 2. This court also directed the district

court to “apply the ‘prisoner’s mailbox rule’ in determining the dates Brown’s habeas

petitions were filed with the court.” Id.

       On remand, the district court gave Brown the benefit of the prisoner mailbox rule

in determining the filing dates of his two federal habeas petitions. It also examined the

decision in Duncan, in which the Court effectively overruled Tenth Circuit case law

holding that the pendency of a federal habeas petition statutorily tolled the one-year

limitations period (see Petrick v. Martin, 236 F.3d 624, 629 (10th Cir. 2001)). The


                                               4
district court found that Brown “ha[d] failed to show the existence of an extraordinary

circumstance beyond his control or diligence in pursuing his claims” and thus was “not

entitled to equitable tolling.” ROA, Doc. 27 at 4. The district court noted that Brown

“could not have relied on [this court’s decision in] Petrick when he filed the motion to

dismiss his first habeas corpus petition, because it was decided 13 days later.” Id. The

district court also noted that Brown “offer[ed] no explanation of why he did not address”

Duncan “in his December 10, 2001, response to [respondent’s] motion to dismiss.” Id. at

3. Lastly, the district court noted that Brown’s “limitation period had not expired when

his first habeas corpus petition was dismissed.” Id. at 4.

       Brown asserts two challenges to the district court’s order of dismissal. First, he

argues “it is unclear whether the district court on remand applied the prisoner mail box

rule . . . as to the date [he] filed his second petition.” Aplt. Br. at 4. Second, he argues “it

is unclear if the district court considered equitable tolling prior to Duncan, as a proper

ground for tolling based on his reliance on current law which was subsequently changed.”

Id. Although this latter argument is far from clear, Brown appears to be arguing the

district court failed properly to take into account the fact that, at the time he refiled his

federal habeas petition, the petition would have been considered timely under Tenth

Circuit law because of his prior filing of a federal habeas petition (i.e., Tenth Circuit law

would have allowed him to toll the time that his first federal habeas petition was

pending).


                                                5
       Brown’s second federal habeas petition actually was filed with the district court on

June 14, 2001. Notwithstanding that fact, the district court found that Brown signed the

petition on June 6, 2001, and utilized that date as the filing date for purposes of its

analysis. Clearly, Brown’s filing date could not have been any earlier than June 6, 2001,

since he could not have signed and dated the petition after placing it in the prison mail

system. Thus, it appears clear that the district court gave Brown the benefit of the

prisoner mailbox rule.

       Turning to Brown’s second argument, at the time he refiled his federal habeas

petition on June 6, 2001, Tenth Circuit law would have considered the petition timely

filed. More specifically, under Petrick, the filing of Brown’s first federal habeas petition

on June 27, 2000, would have tolled the running of the one-year limitations period until

March 7, 2001, when the district court dismissed that petition without prejudice. In turn,

that would have left Brown approximately 108 days to refile in a timely fashion.2

Because Brown refiled approximately 90 days later, on June 6, 2001, his refiled petition

would have been considered timely under Petrick.

       The problem for Brown is three-fold. First, as already noted, Duncan overruled

Petrick and held that the filing and pendency of a federal habeas proceeding does not toll



       2
        Under Petrick, the one-year limitations period would have run unabated for 257
days from October 14, 1999, when Brown’s state conviction became final, until June 27,
2000, when he filed his first federal habeas petition, leaving Brown with approximately
108 days of the one-year time period.

                                               6
the one-year limitations period under § 2244(d)(2). Second, nowhere in his appellate

brief or in the record on appeal has Brown alleged that he relied on Petrick in waiting

approximately 90 days after exhausting his state court remedies to refile his federal

habeas petition. Third, and relatedly, Brown has failed to establish that he acted

diligently in pursuing his federal habeas claims. Not only has he offered no explanation

for the 90-day time period between the exhaustion of his state court remedies and the

refiling of his federal habeas petition, he has failed to account for the lengthy time period

that elapsed between the date his state conviction became final (October 14, 1999), and

the date he attempted to pursue any type of post-conviction relief (June 27, 2000).

       Brown has failed to meet his burden of demonstrating that equitable tolling should

apply. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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