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

                                      TENTH CIRCUIT                      February 13, 2014

                                                                        Elisabeth A. Shumaker
KENNETH RAY LEE, a/k/a Kenneth                                              Clerk of Court
Ray Thompson,
            Petitioner - Appellant,
                                                             No. 13-4147
v.                                                             (D. Utah)
                                                     (D.C. No. 2:12-CV-00727-DB)
ALFRED BIGELOW, Warden,
            Respondent - Appellee.


              ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


         On July 23, 2012, Kenneth Thompson, a federal prisoner proceeding pro se, filed a

petition under 28 U.S.C. § 2254, challenging his confinement in Utah State Prison. The

United States District Court for the District of Utah dismissed Thompson’s petition as

untimely and found no basis to excuse his late filing. On appeal, Thompson requests that

we issue a certificate of appealability. Exercising jurisdiction under § 1291, we decline

his request and dismiss this appeal.1



     *
      This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule
32.1.
     1
     Although the district court did not properly enter final judgment in this matter, we
nevertheless have jurisdiction over this appeal. See United States v. Mendoza, 698 F.3d
1303, 1309 n.3 (10th Cir. 2012) (finding no reason to remand for proper entry of
judgment where there is no question as to the finality of the district court’s decision).
    A certificate of appealability is a jurisdictional prerequisite to this court’s review of a

§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To receive a certificate of appealability, a petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the

district court denied Thompson’s habeas petition on procedural grounds, he must also

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. 473, 484 (2000) (emphasis added).

In this case, it is beyond debate that the district court correctly dismissed Thompson’s

habeas petition as untimely.

       The underlying proceedings in this case are somewhat unique from a procedural

standpoint. In 1984, Thompson was convicted in Utah State court and sentenced to a term

of 1–15 years for a weapons possession charge and a concurrent sentence of 5 years to

life for a separate habitual offender charge. Over twenty years later, the State of Utah

filed a motion to correct Thompson’s sentence because subsequent case law had made

clear that Utah does not recognize a stand-alone habitual offender charge for which a

defendant can be separately sentenced. The Utah district court granted the State’s motion

but did not change the length of Thompson’s sentence. Instead, the court enhanced its

original sentence for the weapons possession charge (given Thompson’s habitual offender

status) to a term of 5 years to life in prison. Thompson was represented by counsel during

the re-sentencing proceedings but appears to have appealed the district court’s decision

pro se. The Utah Court of Appeals dismissed his appeal on November 24, 2008 for failure

to file a docketing statement.

                                             -2-
       On January 2, 2009, Thompson, still proceeding pro se, filed a state petition for

post-conviction relief. The post-conviction court summarily dismissed this petition on

April 28, 2009, finding all claims procedurally barred. Thompson then filed an untimely

notice of appeal in January of 2011, which the Utah Court of Appeals dismissed for lack

of jurisdiction.

       Again, Thompson did not file the instant § 2254 petition until July 23, 2012.

       Applications under § 2254 are subject to a one-year statute of limitations under the

Anti-Terrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1).

The statute provides several possible starting dates for the limitations period, but the one

applicable here is “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C. §

2244(d)(1)(A).

       In his petition for habeas review, Thompson asserts various claims stemming from

his convictions and original sentencing in 1984 and his re-sentencing in 2008. Any claims

relating to the 1984 conviction and sentence are too late by decades. As for any claims

relating to Thompson’s re-sentencing, the clock began to run on those claims when the

court’s judgment became final—in this case, upon the conclusion of Thompson’s direct

appeal. This occurred on December 24, 2008, when Thompson did not seek certiorari

from the Utah Supreme Court 30 days after the Court of Appeals dismissed his initial

appeal for failure to file a docketing statement. See Utah R. App. P. 48(a) (allowing 30

days to petition for a writ of certiorari).



                                              -3-
        The limitations period was then tolled by the proper filing of an “application for

State post-conviction or other collateral review with respect to the pertinent judgment or

claim.” 28 U.S.C. § 2244(d)(2); see Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000)

(recognizing that AEDPA limitations period is tolled while post-conviction application is

pending). By our calculations, however, the state post-conviction petition was only

pending from January 2, 2009 (when Thompson filed), until May 28, 2009 (when the

time for seeking review of the post-conviction court’s dismissal expired). See Utah R.

App. P. 4(a) (providing jurisdictional 30-day time limit to appeal a final order).

Accordingly, the limitations period was only tolled for 146 days. Subtracting these days

from the total amount of time it took Thompson to file his § 2254 petition (beginning on

the date on which the state court’s judgment on re-sentencing became final and ending on

the date of filing), we find that Thompson took over three years to file his § 2254

petition—making it over two years too late. The district court also reached this

conclusion based on similar calculations.2

        Thompson can only avoid the time bar if he can show that he is actually innocent,

see McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013), or that he has diligently pursued

a judicial remedy but extraordinary circumstances beyond his control prevented him from

meeting the deadline, see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Thompson does not assert an actual

innocence claim, nor does he offer up any facts or argument that might justify equitable

    2
     The district court’s order mistakenly cites the date of filing as July 12, 2012 rather
than July 23, 2012. This mistake has no effect on the court’s determination of
untimeliness.
                                             -4-
tolling. To the contrary, the record suggests a lack of diligence and, apart from those

hardships facing most all pro se litigants, it is devoid of any extraordinary circumstances

that would prevent Thompson from filing within one year of re-sentencing. The district

court found this much as well and reasonable jurists could not debate whether the court’s

refusal to toll the statute of limitations was an abuse of discretion. See Burger v. Scott,

317 F.3d 1133, 1138 (10th Cir. 2003) (recognizing that we review a district court’s

equitable tolling decision for an abuse of discretion). In reaching this conclusion, we

emphasize that the merits of Thompson’s underlying habeas claims play no part in the

equitable tolling analysis. See 28 U.S.C. § 2244(d)(1).

       Based on the foregoing, we DENY a certificate of appealability. We GRANT

Thompson’s motion to proceed in forma pauperis but DENY all other outstanding

motions and DISMISS this appeal.



                                          ENTERED FOR THE COURT


                                          Gregory A. Phillips
                                          Circuit Judge




                                           -5-
