                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         June 28, 2006
                    UNITED STATES CO URT O F APPEALS                 Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 CA LV IN M ILLS,

       Petitioner – Appellant,
 v.
                                                        No. 06-3120
 DAVID R. M CKUNE, W arden,                      (D.C. No. 05-CV-3371-SAC)
 Lansing Correctional Facility; and                       (D . Kan.)
 PH IL KLINE, Attorney General of
 Kansas,

       Respondents– Appellees.



         OR DER DENY ING A CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Calvin M ills, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. For substantially the same reasons set forth by the district court,

we D EN Y a COA and DISM ISS.

      M ills was convicted in 1999 of rape, aggravated criminal sodomy and

taking aggravated indecent liberties with a child. He appealed, but his conviction

was affirmed and the Kansas Supreme Court finally denied a petition for review

on September 24, 2002.    M ills then filed a petition for state post-conviction relief
on M arch 18, 2003, which was denied by the Kansas Supreme Court on

September 20, 2004.

       On September 10, 2005, M ills filed a federal habeas petition. Rejecting his

argument that the statute of limitations should be equitably tolled, the district

court dismissed the petition as time-barred. It also denied his petition for a COA.

Having failed to secure a COA from that court, M ills now seeks a COA from this

court. 1

       The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U .S.C. § 2244(d). It states:

       (1) A 1-year period of limitation shall apply to an application for a
       writ of habeas corpus by a person in custody pursuant to the
       judgment of a State court. The limitation period shall run from the
       latest of –
           (A) the date on which the judgment became final by the
       conclusion of direct review or the expiration of the time for seeking
       such review ;



       1
         M ills’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires M ills to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied M ills a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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          (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of the
      United States is removed, if the applicant was prevented from filing
      by such State action;
          (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been
      newly recognized by the Supreme Court and made retroactively
      applicable to cases on collateral review; or
          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
       (2) The 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 under this subsection.


M ills had ninety days after the Kansas Supreme Court denied review to file a

petition for a writ of certiorari to the Supreme Court. As he did not, the statute of

limitations began running on December 24, 2002. Locke v. Saffle, 237 F.3d

1269, 1272 (10th Cir. 2001). Eighty-three days passed before he filed his

petition for state post-conviction relief. Three hundred fifty-five days passed

between the date the Kansas Supreme Court finally denied his petition for state

post-conviction relief and the date he filed his federal habeas petition. W hen

taken together, the two periods exceed the one-year statute of limitation by

seventy-three days.

      M ills raises three arguments why his petition should not be time-barred.

Under Kansas Supreme Court Rule 7.06, a party has twenty days from the date the

Kansas Supreme Court issues a decision to file a petition for rehearing. As such,



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M ills argues that the statute of limitations should have been stayed for twenty

days after the date the Kansas Supreme Court issued its order ending his direct

criminal appeal and for another twenty days after its final decision on his petition

for post-conviction relief. He is partially right and partially wrong. The date the

conviction became final was properly calculated by the district court; it began to

run ninety days after the Kansas Supreme Court denied review because M ills

could have filed a petition for a writ of certiorari to the United States Supreme

Court during this period. The twenty days to file a petition for rehearing before

the Kansas Supreme Court were subsumed during this ninety day period.

      M ills is right that the statute of limitations for his federal habeas petition

should have been tolled for twenty days after the Kansas Supreme Court denied

his petition for state post-conviction relief. See Serrano v. W illiams, 383 F.3d

1181, 1185 (10th Cir. 2004). This, however, does not change the fact that his

petition is time-barred.

      M ills also argues that the limitations period should have been equitably

tolled. 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). M ills claims that equitable tolling should be applied

because the Kansas Appellate Defender Office misled him by telling him that he

the limitations period would be tolled for ninety days following the final denial of

                                          -4-
his petition post-conviction relief. The letter from the Kansas Appellate Defender

Office to which M ills refers, however, is a general letter that accurately describes

the law , even if it does not specifically analyze the statute of limitations w ith

regards to M ills’ case. Further, attorney error generally does not give rise to

equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir.

2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Finally, M ills

cannot establish that he diligently pursued his claims. As such, equitable tolling

is not applicable.

      Lastly, M ills claims that the statute of limitations contained in § 2244(d) is

unconstitutional. He does not provide any reason why § 2244(d) is

unconstitutional and, as such, this challenge fails.

      For the reasons set forth above, M ills’ request for a COA is DENIED and

the appeal is DISM ISSED.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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