                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        August 31, 2005
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


REYNALDO ALVIDREZ,

          Petitioner-Appellant,
                                                       No. 05-3129
v.
                                                    (District of Kansas)
                                                (D.C. No. 04-CV-3199-SAC)
DAVID McKUNE, Warden, Lansing
Correctional Facility,

          Respondent-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



      Proceeding pro se, Reynaldo Alvidrez seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the habeas petition he filed

pursuant to 28 U.S.C. § 2254. 1 See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the



      1
        Although Alvidrez’s notice of appeal was filed fourteen days late,
Alvidrez filed a timely motion for extension of time. See Fed. R. App. P. 4(a)(5).
The district court granted Alvidrez’s motion and, accordingly, this court has
jurisdiction over this matter. See Hinton v. City of Elwood, 997 F.2d 774, 778
(10th Cir. 1993).
petitioner first obtains a COA). In 1999, Alvidrez was convicted of first degree

murder, aggravated burglary, and criminal damage to property. Alvidrez’s

convictions were affirmed by the Kansas Supreme Court. See State v. Alvidrez,

20 P.3d 1264 (Kan. 2001). Alvidrez filed a state post-conviction petition on June

8, 2001; it was denied on July 11, 2001. According to Alvidrez, the Kansas

Supreme Court denied his Petition for Review on March 28, 2003. Fourteen

months later, on June 11, 2004, Alvidrez filed the instant § 2254 habeas petition.

In the § 2254 petition, Alvidrez asserted claims that his counsel provided

constitutionally ineffective assistance.

      The district court ordered Alvidrez to show cause as to why his § 2254

petition should not be dismissed as untimely. See 28 U.S.C. § 2244(d)(1)(A),

(d)(2). In his response, Alvidrez argued that he was entitled to equitable tolling

of the one-year limitations period. The district court considered Alvidrez’s

arguments but concluded that he had failed to demonstrate that his failure to file a

timely petition was caused by extraordinary circumstances beyond his control.

See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). The court also

concluded that Alvidrez had failed to present specific facts indicating the steps he

took to diligently pursue his claims. See id.

      In his application for a COA and accompanying brief, Alvidrez re-asserts

the argument that he is entitled to equitable tolling and challenges the basis on


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which the district court denied his request for equitable tolling. We review for

abuse of discretion a district court’s decision whether or not to equitably toll the

one-year limitations period. Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir.

2003).

         Alvidrez is not entitled to equitable tolling unless he can demonstrate that

he diligently pursued the claims raised in his § 2254 petition. See Marsh, 223

F.3d at 1220. The record before this court establishes that Alvidrez failed to act

in a diligent fashion to preserve his right to file a federal habeas petition. By his

own admission, Alvidrez was aware that the Kansas Supreme Court denied his

Petition for Review no later than May, 2003. Nonetheless, he waited more than

one year to file his § 2254 petition. Thus, it is clear that the district court did not

abuse its discretion when it refused to equitably toll the one-year limitations

period.

         Alvidrez also argues that the one-year limitations period should be tolled

during the period he could have sought certiorari in the United States Supreme

Court from the Kansas court’s judgment on his state post-conviction petition.

Alvidrez’s argument is foreclosed by circuit precedent. Rhine v. Boone, 182 F.3d

1153, 1156 (10th Cir. 1999), but see Abela v. Martin, 348 F.3d 164, 172-73 (6th

Cir. 2003) (en banc).

         To be entitled to a COA, Alvidrez must show “that jurists of reason would


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find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Alvidrez’s § 2254 petition as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, this court denies Alvidrez’s request for a

COA and dismisses this appeal.

                                        Entered for the Court
                                        PATRICK FISHER, Clerk of Court



                                        By
                                                Deputy Clerk




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