                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          March 24, 2006
                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court

 RODNEY ALAN GUNDERSON,

                  Petitioner-Appellant,                  No. 05-8125
          v.                                             (D. of Wyo.)
 SCOTT ABBOTT, Warden of the                     (D.C. No. 04-CV-353-WFD)
 Wyoming State Penitentiary, and THE
 ATTORNEY GENERAL OF THE
 STATE OF WYOMING,

                  Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                  *




Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.             **




      Petitioner-Appellant Rodney Alan Gunderson, a state prisoner appearing

pro se, seeks to appeal the dismissal of his petition for writ of habeas corpus.

Gunderson filed his petition pursuant to 28 U.S.C. § 2254 in the United States



      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
District Court for the District of Wyoming. The district court dismissed his

petition as untimely and also denied his application for a certificate of

appealability (COA).      See 28 U.S.C. § 2253(c)(1) (requiring a petitioner in state

custody to obtain a COA before appealing a district court’s final order in a habeas

corpus proceeding). Gunderson appeals from that ruling, requesting a COA from

this court. Because Gunderson has failed to show that reasonable jurists would

find the district court’s procedural ruling debatable, we deny a COA and dismiss

the appeal.

                                     I. Background

      Rodney Alan Gunderson was convicted in a bifurcated jury trial on three

counts of aggravated assault and battery and was sentenced to life imprisonment

as a habitual criminal. His convictions were entered by the trial court on May 19,

1995, and affirmed by the Wyoming Supreme Court on October 11, 1996.

Gunderson filed a petition for rehearing, which the state supreme court denied on

October 29, 1996. Gunderson never petitioned the United States Supreme Court

for writ of certiorari.

      Gunderson did not immediately pursue any form of state post-conviction

relief. Instead, he moved directly into a federal forum, filing a habeas petition in

the Wyoming district court on October 31, 1997. The district court dismissed the

petition without prejudice on May 6, 1999, for failure to exhaust state court


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remedies. That decision was affirmed by the Tenth Circuit on November 22,

1999, Gunderson v. Hettgar , 201 F.3d 447 (10th Cir. 1999) (unpublished), and the

United States Supreme Court denied certiorari on December 11, 2000,      Gunderson

v. Hettgar , 531 U.S. 1053 (2000).

      On May 12, 2000, while his federal certiorari petition was pending,

Gunderson filed a state law petition for post-conviction relief. That petition was

dismissed by the state court on August 28, 2000. Over four years later, on

October 22, 2004, Gunderson sought review of the dismissal by filing a petition

for writ of certiorari with the Wyoming Supreme Court. This petition was denied

on November 10, 2004.

      Gunderson then returned to federal court, filing a second habeas petition in

the district court on December 21, 2004. This petition was dismissed as untimely

on November 29, 2005, and the district court denied Gunderson a COA on

December 29, 2005.

                                     II. Discussion

      This court may issue a COA if a petitioner      “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Where, as here, the district court denies a

habeas petition on procedural grounds, the burden is on the petitioner to

demonstrate both “that jurists of reason would find it debatable whether the


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petition states a valid claim of the denial of a constitutional right, and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack, 529 U.S. at 484 (emphasis added). In Gunderson’s

case, we need not reach the substantive claims, because he has failed to show that

the district court’s procedural ruling was debatable.

      The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a

one-year statute of limitations for all habeas petitions filed by state prisoners.

28 U.S.C. § 2244(d)(1). In this case, the period began running on January 27,

1997, when Gunderson’s conviction became final by virtue of the expiration of

the ninety-day period to file a petition for writ of certiorari with the United States

Supreme Court. 28 U.S.C. § 2244(d)(1)(A); Locke v. Saffle, 237 F.3d 1269, 1273

(10th Cir. 2001). Thus, since the one-year limitation in AEDPA is calculated

using the anniversary date method, United States v. Hurst, 322 F.3d 1256,

1259–61 (10th Cir. 2003), the deadline for filing a federal habeas petition in this

case was January 27, 1998—nearly seven years before Gunderson filed the

present petition.

      Although his petition was clearly untimely, Gunderson contends his late

filing should be excused. Construing his pleadings liberally, Cummings v. Evans,




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161 F.3d 610, 613 (10th Cir. 1998), Gunderson makes a number of arguments,

which fall under two main rubrics: (1) statutory tolling, and (2) equitable tolling. 1

                                A. Statutory Tolling

      AEDPA allows the one-year period to be tolled for the “time during which

a properly filed application for State post-conviction or other collateral review” is

pending. 28 U.S.C. § 2244(d)(2). However, Gunderson cannot avail himself of

this remedy because he failed to seek any post-conviction relief in state court

until May 12, 2000, which was nearly two and a half years after the AEDPA

deadline had passed. A state court filing submitted after the AEDPA deadline

does not toll the limitations period. Fisher v. Gibson, 262 F.3d 1135, 1142–43

(10th Cir. 2001). Nor can Gunderson use this provision to toll the deadline based



      1
          Gunderson also attempts to argue that, because his second petition is not
considered “successive” for purposes of 28 U.S.C. § 2244(b)(2), it should not be
given its own filing date for purposes of § 2244(d)(1). The United States
Supreme Court previously held, where a petitioner’s first federal habeas petition
is dismissed for failure to exhaust without ruling on the merits and the petitioner
files a second federal habeas petition, it will be “treated as any other first
petition” and is not a successive petition for purposes of the exacting review
standards set forth in § 2244(b)(2). Slack, 529 U.S. at 487 (internal citations
omitted). Gunderson argues that this means his second petition should be given
the date of his first petition for purposes of § 2244(d)(1). However, this argument
not only lacks support from the case law he cites but it cuts against another
holding of the United States Supreme Court. See Rhines v. Weber, 125 S. Ct.
1528, 1533–35 (2005) (granting the district court limited discretion to stay
proceedings on habeas petitions with unexhausted claims while acknowledging
that, if the district court dismisses after the time limit has passed, a second
petition will be untimely).

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on his first federal habeas filing, because the United States Supreme Court has

explicitly held that Congress’s use of the word “State” indicates it did not intend

to allow tolling based on federal filings. Duncan v. Walker, 533 U.S. 167,

172–73 (2001).




                               B. Equitable Tolling

       Equitable tolling is an extraordinary remedy employed by this court in “rare

and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000). We have held it 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.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). “Simple excusable neglect is not sufficient.” Gibson, 232 F.3d at

808.

       Gunderson supplies a number of reasons for his late filing, all of which

attempt to shift responsibility to another party. First, he argues, the district judge

caused him to miss his deadline by ruling on his initial habeas petition after the

one-year period had passed and then dismissing the action instead of abating it

while he exhausted his state court remedies. We already ruled in Gunderson’s

first appeal that these actions by the district court did not constitute an abuse of


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discretion. Gunderson, 201 F.3d at *1. Moreover, the United States Supreme

Court recently emphasized that, although district court delays may keep a

petitioner from ever being heard on unexhausted habeas claims, the purposes of

AEDPA require adherence to the principle that “stay and abeyance should be

available only in limited circumstances” where there was “good cause for the

petitioner’s failure to exhaust his claims first in state court.” Rhines v. Weber,

125 S. Ct. 1528, 1535 (2005).

      In this case, Gunderson’s sole excuse for his initial failure to exhaust is that

he was unaware of the requirement. Where even discretionary stay or abeyance

has been so narrowly circumscribed by the Supreme Court, we certainly cannot

compel such relief based on mere ignorance of the law, which neither removes

fault from the petitioner nor sets him apart from any other case. The argument is

particularly weak in this case, because the exhaustion requirement is listed as a

prerequisite in the federal habeas statute that Gunderson employed to seek relief.

28 U.S.C. § 2254(c). Moreover, even if the district court had chosen to abate the

federal proceedings, Gunderson has not explained why he delayed for over four

years between stages of state court review. See Rhines, 125 S. Ct. at 1535

(holding a petitioner who unnecessarily delays state court proceedings should not

receive a stay of federal habeas proceedings). Thus, Gunderson’s failure to

follow the express federal habeas requirements in the first instance, coupled with


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the languid manner in which he pursued exhaustion of his state court remedies,

demonstrate that he did not “diligently pursue[] his claims,” and is therefore not

entitled to this extraordinary equitable remedy.

      Gunderson’s second and third arguments both seek to justify his ignorance

of the law. He contends, “This Petitioner is [u]ntrained and [u]nskilled in the

[l]aw and therefore should not be held to the exacting standards a [q]ualified

[l]awyer is required to.” Aplt. Br. at 3. However, failure to learn applicable law

does not constitute “extraordinary circumstances beyond his control.” Indeed, “it

is well established that ignorance of the law, even for an incarcerated pro se

prisoner, generally does not excuse prompt filing.” Marsh, 223 F.3d at 1220; see

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (equitable tolling not justified

by the fact that petitioner simply did not know about AEDPA time limitation).

      Alternatively (and inconsistently), Gunderson asserts that he did benefit

from the assistance of counsel but that he was incorrectly advised with regard to

his exhaustion requirements and filing deadlines. However, attorney error is

generally not a basis for equitable tolling of the federal habeas deadline. See,

e.g., Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (applying general rule

that “attorney error, miscalculation, inadequate research, or other mistakes have

not been found to rise to the extraordinary circumstances required for equitable

tolling”) (internal citations omitted); Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.


                                         -8-
2003) (“a mistake by a party’s counsel in interpreting a statute of limitations does

not present the extraordinary circumstance beyond the party’s control where

equity should step in to give the party the benefit of his erroneous

understanding”) (internal citations omitted); United States v. Martin, 408 F.3d

1089, 1093 (8th Cir. 2005) (“Ineffective assistance of counsel, where it is due to

an attorney’s negligence or mistake, has not generally been considered an

extraordinary circumstance [for equitable tolling purposes]”).

      In this case, where it appears Gunderson never formally retained counsel

but somehow attempted to solicit advice from the public defender’s office, we

find the “ineffective assistance” argument even less compelling. We conclude

that Gunderson has failed to show “extraordinary circumstances beyond his

control” prevented him from timely filing and is therefore not entitled to relief

from this court.

                                  III. Conclusion

      Gunderson’s petition was untimely filed, and he has failed to demonstrate

that he meets the requirements of statutory tolling or that his case presents the

kind of rare and exceptional circumstance that would entitle him to equitable

tolling. We conclude that jurists of reason would not find the district court’s

procedural decision debatable. Accordingly, we DENY a COA and DISMISS the

case. We GRANT Gunderson’s motion to proceed in forma pauperis.


                                         -9-
       Entered for the Court

       Timothy M. Tymkovich
       Circuit Judge




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