                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                         January 29, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 RAPHEL UNTEEKE DENNIS,

       Petitioner - Appellant,

 v.                                                        No. 19-6135
                                                    (D.C. No. 5:19-CV-00381-G)
 SCOTT CROW,                                               (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Raphel Dennis seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss

the appeal.

                                           I

      On June 15, 2015, Dennis pled guilty in Oklahoma court to robbery with a

firearm, possession of marijuana and cocaine with intent to distribute, driving



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
without a license, and possession of cocaine. He received several sentences of

imprisonment that were to run concurrently. The longest of his sentences, for

robbery with a firearm, was for 26 years of imprisonment, with all but the first

thirteen years suspended.

      On November 21, 2016, Dennis filed an application for state post-conviction

relief. The trial court struck his application, and the Oklahoma Court of Criminal

Appeals denied his petition requesting review. Dennis filed this § 2254 petition in

federal district court. The court denied his petition as time-barred and declined to

grant a COA. Dennis now seeks a COA from this court.

                                           II

      A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To meet

this standard, Dennis must demonstrate “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. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a

one-year limitations period on habeas petitions filed by state prisoners. 28 U.S.C.

§ 2244(d). This period generally runs from the date a conviction becomes final. See

§ 2244(d)(1)(A). Dennis’ conviction became final ten days after his guilty plea,

when the period for filing an appeal expired. See Fisher v. Gibson, 262 F.3d 1135,

                                            2
1142 (10th Cir. 2001). Because he pled guilty on June 15, 2015, his conviction

became final on June 25. The one-year limitations period began to run the next day

and expired on Monday, June 27, 2016. See Fed. R. Civ. P. 6(a)(1)(C) (extending a

period ending on a Sunday to the following Monday).

      Although the period is statutorily tolled while a properly filed application for

state post-conviction relief is pending, § 2244(d)(2), Dennis did not file his petition

for post-conviction relief until November 21, 2016. Absent equitable tolling, the

limitations period expired before Dennis filed his application for state post-

conviction relief. His § 2254 petition was therefore untimely.

      At the district court, Dennis argued for the application of § 2244(d)(1)(D),

under which the limitations period runs from “the date on which the factual predicate

of the claim or claims presented could have been discovered through the exercise of

due diligence.” Id. He contended the limitations period began on November 24,

2015, when the state trial court issued an order denying his motion to correct the

record and his motion requesting transcripts. Dennis appears to abandon this

argument on appeal.

      Even if we were to hold that the limitations period began on November 24,

2015, Dennis’ petition would still be untimely. In that case, he would have had until

November 25, 2016 to file a habeas petition. See United States v. Hurst, 322 F.3d

1256, 1260-61 (10th Cir. 2003) (holding AEDPA limitations period is calculated

using anniversary-date method even when intervening period includes leap year).

Dennis filed his application for state post-conviction review on November 21, 2016,

                                            3
leaving four days in the limitations period. The period resumed after the final

dismissal of his application on May 18, 2018 and expired on May 22, 2018. Dennis

filed his habeas petition on April 25, 2019.

       Thus, even if the limitations period began on November 24, 2015, the petition

would still be untimely absent equitable tolling. Equitable tolling “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). Dennis does not offer a reason for the

untimeliness of his § 2254 petition.

       Equitable tolling is also appropriate if “a prisoner is actually innocent.”

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). To meet the actual innocence

exception, a petitioner must demonstrate that “it is more likely than not that no

reasonable juror would have convicted him” based upon new reliable evidence.

Schlup v. Delo, 513 U.S. 298, 327 (1995). Dennis does not contend that he is

actually innocent of the crimes of which he was convicted. Therefore, equitable

tolling is unavailable.




                                            4
                                     III

     For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Dennis’ motion to proceed in forma pauperis is GRANTED.


                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




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