                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 25 2005
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


LARRY FRANCIS DURDEN,

       Petitioner-Appellant,
                                                        No. 04-7085
v.                                             (Eastern District of Oklahoma)
                                                  (D.C. No. 03-CV-600-S)
MICHAEL ADDISON, Warden,

       Respondent-Appellee.




                                     ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, state prisoner Larry Francis Durden 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. 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). In November 2001, Durden

entered a guilty plea to a charge of lewd molestation. Durden did not attempt to

withdraw his guilty plea or otherwise directly appeal his conviction. He did,

however, file a state post-conviction petition on March 22, 2004, seeking an

appeal out of time. The state petition was denied, as was Durden’s appeal.
      Durden filed the instant § 2254 petition on October 29, 2003. In the

petition, Durden asserted claims against the parent of the victim, a claim that his

counsel provided him with constitutionally ineffective assistance, a claim that his

guilty plea was not made knowingly and voluntarily, and a claim that records

from a prior California conviction are either erroneous or have been altered.

Respondent moved to dismiss the § 2254 as untimely. The district court granted

Respondent’s motion, concluding that Durden’s petition was filed outside the

one-year limitations period and that Durden was not entitled to any tolling of the

limitations period.

      In his appellate brief and application for a COA, Durden does not argue

that his § 2254 petition was filed within the one-year limitations period. 28

U.S.C. § 2244(d)(1)(A). Instead, he argues that the one-year limitations period is

unconstitutional. After reviewing the record, we reject Durden’s argument that

applying the limitations period in this case rendered the habeas remedy inadequate

or ineffective. See Miller v. Marr, 141 F.3 976, 978 (10th Cir. 1998).

      To be entitled to a COA, Durden 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


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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 Durden’s § 2254 petition as

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

resolution on appeal. Accordingly, we deny Durden’s request for a COA and

dismiss this appeal. All outstanding motions are dismissed as moot.

                                       Entered for the Court
                                       PATRICK FISHER, Clerk of Court


                                       By
                                               Deputy Clerk




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