                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                            December 8, 2006
                                     TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                              Clerk of Court

 MARCOS ANTHONY CHAVEZ,

                 Petitioner - Appellant,

           v.                                                  No. 06-5159
                                                      (D. Ct. No. 05-CV-554-HDC)
 RANDALL WORKMAN, Warden;                                      (N. D. Okla.)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

                 Respondent - Appellee .



                ORDER DENYING CERTIFICATE OF APPEALABILITY *


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


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Petitioner-Appellant Marcos Chavez, a state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal from the District Court’s denial of his




       *
        This order is not binding precedent except under the doctrines of law of the case,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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
habeas corpus petition brought under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A).

We take jurisdiction under 28 U.S.C. § 1291, deny Mr. Chavez’s request for a COA, and

dismiss this appeal.

       On July 27, 1999 Mr. Chavez pleaded guilty to injury of a minor and was

sentenced to life imprisonment. Despite being advised of his right to do so, Mr. Chavez

did not file a motion to withdraw his plea nor did he otherwise file a direct appeal

respecting his conviction or sentence to the Oklahoma Court of Criminal Appeals

(“OCCA”). Not until February 14, 2005 did Mr. Chavez seek to challenge his conviction

and sentence by filing a petition for post-conviction relief in the state district court. The

district court denied his petition and the OCCA affirmed. On September 23, 2005, Mr.

Chavez filed a § 2254 habeas petition in federal court advancing three arguments: (1) a

pre-sentence investigation was not preformed and that mitigating circumstances were not

presented on his behalf, (2) he received ineffective assistance of counsel, and (3) newly

discovered evidence creates doubt as to whether he committed the crime. The District

Court dismissed Mr. Chavez’s petition as time-barred and denied him a COA. He now

seeks a COA from this Court.

       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 Mr. Chavez 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. McDaniel, 529 U.S. 473, 484 (2000)

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(quotation omitted). When the district court’s ruling is based on procedural grounds, the

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

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.” Id.

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

year statute of limitations for § 2254 petitions, beginning on the date the judgment

becomes final. 28 U.S.C. § 2244(d)(1)(A). Mr. Chavez’s conviction became final on

October 3, 1999,1 giving him until October 3, 2000 to file his petition. Because Mr.

Chavez did not file his petition until September 2005, nearly five years after the

limitations period had run, his petition is time-barred. Moreover, Mr. Chavez’s petition

cannot be statutorily tolled for time spent in state post-conviction proceedings, see 28

U.S.C. § 2244(d)(2), because Mr. Chavez filed his state petition for post-conviction relief

more than four years after the AEDPA limitations period expired. A collateral petition

filed in state court after the AEDPA limitations period has expired does not toll the one-

year period. See Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001).

       A petitioner may be entitled to equitable tolling of the limitations period but only

when he “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). To the extent Mr. Chavez argues that he is entitled to

       1
       Because Mr. Chavez did not move to withdraw his guilty plea, his conviction
became final ten days after entry of judgment and sentence. Okla. Stat. tit. 22, Ch. 18,
App., Rule 4.2.

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equitable tolling because he “was unaware of the laws regarding appeal at the time of

sentencing” and because his “ability to appeal this case Pro Se was accomplished by self-

education,” we disagree. Ignorance of the law does not provide a basis for equitable

tolling. Id. (“[I]t is well established that ignorance of the law, even for an incarcerated

pro se petitioner, generally does not excuse prompt filing.” (citations and internal

quotation marks omitted)).

       Finally, Mr. Chavez suggests that certain evidence he was unaware of during the

limitations period now casts doubt on his guilt of the crime charged. Specifically, he

points to the fact that a highchair used by his infant son was recalled by the manufacturer

and that it could have been the cause of the child’s injuries. The habeas statutory scheme

allows for late-filed petitions if the petition is filed one year from “the date on which the

factual predicate of the claim or claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The product recall information

was released on April 13, 2000. Assuming such evidence properly would be the basis for

equitable tolling, Mr. Chavez had until April 13, 2001 to file his petition under

§ 2244(d)(1)(D), which he did not do. We therefore agree with the District Court that Mr.

Chavez “did not diligently pursue his claims.”

       We have carefully reviewed Mr. Chavez’s brief, the District Court’s disposition,

and the record on appeal. For substantially the same reasons set forth by the District

Court in its August 4, 2006, order, we cannot say “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

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different manner.” Slack, 529 U.S. at 484. We therefore DENY Mr. Chavez’s request for

a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Chief Circuit Judge




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