                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAR 22 2005
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


BOBBY D. RILEY,

       Petitioner-Appellant,
                                                      No. 04-3163
v.
                                                   (District of Kansas)
                                               (D.C. No. 03-CV-3484-SAC)
DAVID McKUNE; ATTORNEY
GENERAL OF KANSAS,

       Respondents-Appellees.




                                     ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, state prisoner Bobby D. Riley seeks a certificate of

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

corpus petition he filed pursuant to 28 U.S.C. § 2254. 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 petitioner first obtains a COA). On March 16,

2000, Riley entered guilty pleas to two counts of attempted voluntary

manslaughter. Riley did not attempt to withdraw his guilty pleas and he was

sentenced on March 29, 2000. More than one year later, Riley filed a Motion to
Correct Illegal Sentence in Kansas state court. 1 His motion was denied and that

denial was affirmed by the Kansas Court of Appeals on March 21, 2003. The

Kansas Supreme Court denied Riley’s petition for review on June 25, 2003.

      Riley filed the instant § 2254 petition on December 1, 2003. In the

petition, Riley asserted a claim that his due process rights were violated by the

imposition of consecutive sentences and a claim that the use of his juvenile

adjudications to calculate his criminal history score violated the holding of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Respondent filed a motion

requesting the district court to dismiss Riley’s § 2254 petition as untimely. See

28 U.S.C. § 2244(d)(1)(A), (d)(2). Riley argued that he was entitled to equitable

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

arguments but granted Respondent’s motion, concluding that equitable tolling was

not warranted because Riley had not demonstrated 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).

      In his application for a COA and accompanying brief, Riley does not argue

that his § 2254 petition was filed within the one-year limitations period. Instead,

he re-asserts the argument that he is entitled to equitable tolling and challenges



      1
       Riley’s motion was construed by the Kansas Court of Appeals as a habeas
corpus motion under Kan. Stat. Ann. § 60-1507.

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the basis on 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).

      Riley 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 Riley failed to act in a

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

initiated state proceedings more than one year after he was sentenced and, by his

own admission, he then waited one hundred and fifty-eight days after the Kansas

Supreme Court denied his petition for review 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.

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


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that the district court’s dismissal of Riley’s § 2254 petition as untimely is not

deserving of further proceedings or subject to a different resolution on appeal.

Accordingly, this court denies Riley’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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