                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                October 8, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 STEVEN ORLANDO TITSWORTH,

       Petitioner - Appellant,
                                                       No. 08-7057
 v.                                        (D.C. No. 08-CV-00129-RAW-KEW)
                                                       (E.D. Okla.)
 MIKE MULLIN, Warden,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.



      Steven Orlando Titsworth, a state inmate appearing pro se, seeks a

certificate of appealability (COA) allowing him to appeal from the district court’s

denial of his habeas petition pursuant to 28 U.S.C. § 2254. Because the district

court’s conclusion that Mr. Titsworth’s petition was untimely is not reasonably

debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and

dismiss the appeal.

      On February 26, 2003, Mr. Titsworth pleaded guilty to petit larceny and

received a one-year suspended sentence. Because he did not appeal, his

conviction would become final ten days thereafter, on March 8, 2003. That date
was a Saturday, so the conviction became final on March 10, 2003. See Okla. Ct.

Crim. App. R. 1.4, 1.5, 4.2(A); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.

2001). Mr. Titsworth then had one year to file his federal habeas corpus petition

under § 2244(d)(1)(A). This federal petition was filed on March 28, 2008. On

May 5, 2008, the State moved to dismiss the federal petition, and on May 29,

2008, the district court granted the motion on the merits and noted that Mr.

Titsworth had not responded within the time allowed. 1 R. Doc. 9. Thereafter,

Mr. Titsworth filed an objection to the motion to dismiss which was denied. 1 R.

Docs. 11 and 18.

      Mr. Titsworth argues that the one-year limitation period should run from

February 28, 2008, after the conclusion of various state post-conviction

proceedings, the earliest of which was a motion to withdraw his guilty plea filed

January 25, 2007. He also contends that he became aware of the factual predicate

of his claims on November 15, 2006, when he began researching and determined

that his counsel provided incorrect information about his sentence and the district

court did not properly advise him. See 28 U.S.C. § 2244(d)(1)(D). Neither

ground makes the district court’s order reasonably debatable. The state post-

conviction proceedings initiated after the one-year limitation period of §

2244(d)(1)(A) do not toll. See Fisher, 262 F.3d at 1142-43. Moreover, the

Oklahoma Court of Criminal Appeals held that Mr. Titsworth should have been

aware of the sentencing problem on March 5, 2004, a factual determination that is

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presumed correct. 28 U.S.C. § 2254(e)(1). Thus, Mr. Titsworth’s federal petition

was filed well after the one-year period commencing on March 5, 2004.

      Accordingly, we DENY a COA and DISMISS the appeal.

                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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