                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 9 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 LARRY YARBROUGH,

          Petitioner - Appellant,
                                                       No. 02-6125
 v.                                              D.C. No. CIV-01-1421-L
                                                    (W.D. Oklahoma)
 CHARLES RAY, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Larry Yarbrough, a state inmate appearing pro se,

seeks an appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254, as

time-barred pursuant to 28 U.S.C. § 2244(d). To appeal, Mr. Yarbrough must be

granted a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A).

Because the district court’s ruling was based upon procedural grounds, Mr.

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment 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 case is therefore ordered submitted without oral argument.
Yarbrough 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Mr. Yarbrough was convicted in Oklahoma state court of trafficking in

narcotics after former conviction of two or more felonies and was sentenced to

life imprisonment without possibility of parole. Mr. Yarbrough’s conviction was

affirmed by the Oklahoma Court of Criminal Appeals (“OCCA”) on August 28,

1998. The first federal habeas petition was filed on May 11, 1999, and was

dismissed by the district court on November 30, 1999, for failure to exhaust as to

certain claims. An application for post-conviction relief to the Oklahoma state

courts was denied by the OCCA on September 8, 2000. A pro se motion to amend

the 1999 habeas petition and a “Motion to Resume Habeas Review” filed in

federal district court on October 2, 2000, were denied with the advice that Mr.

Yarbrough must file a new habeas petition. The most recent federal habeas

petition was then filed with assistance of counsel on September 10, 2001.

Adopting the recommendation of the magistrate judge, the district court dismissed

the petition as time-barred under the one-year limitation provision of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §

2244(d).


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      Pursuant to AEDPA, a state prisoner generally has one year from the date

his conviction becomes final to file a petition for a writ of habeas corpus in

federal court. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall

apply to an application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.”). The AEDPA one-year limitation

period is tolled during the time in which a “properly filed application for State

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

or claim is pending.” 28 U.S.C. § 2244(d)(2). The one-year statute of limitations

may be equitably tolled, although only “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). Mr. Yarbrough has the burden of demonstrating that equitable tolling

should apply. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).

      Approximately 16 months–already four months longer than the one-year

AEDPA limitation–elapsed between the date Mr. Yarbrough’s conviction became

final (November 26, 1998, 90 days after the OCCA affirmed his conviction) and

his filing for post-conviction relief in Oklahoma state court (March 31, 2000).

The time between filing of Mr. Yarbrough’s first federal habeas petition and its

dismissal without prejudice (November 30, 1999) does not toll the AEDPA

limitation under the rule of Duncan v. Walker, 533 U.S. 167, 181-82 (2001)


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(holding “an application for federal habeas corpus review is not an ‘application

for State post-conviction or other collateral review’ within the meaning of 28

U.S.C. § 2244(d)(2),” and that therefore the section does “not toll the limitation

period during the pendency of [a petitioner’s] first federal habeas petition.”).

      Nonetheless, Mr. Yarbrough argues, in part, that “‘equitable tolling’ should

be allowed in individual cases where the effects” of the rule in Duncan are

“particularly unfair.” Aplt. Supp. Br. at 8. It is true that Duncan, while clarifying

that a federal petition is not tolled under § 2244(d)(2), did not address the

availability of equitable tolling under appropriate circumstances. See Duncan,

533 U.S. at 183 (Stevens, J., concurring) (“[N]either the Court’s narrow holding

[in Duncan], nor anything in the text or legislative history of AEDPA, precludes a

federal court from deeming the limitations period tolled for such a petition as a

matter of equity.”). We agree with the district court that the lack of diligence in

this case, notwithstanding Mr. Yarbrough’s other arguments, precludes equitable

tolling. See Miller, 141 F.3d at 978. “[T]he principles of equitable tolling . . . do

not extend to what is at best a garden variety claim of excusable neglect.” Irwin

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).

      Mr. Yarbrough also argues that the 2001 petition should relate back to or

amend the prior habeas petition. Aplt. Br. at 7. We have already considered and

rejected just such an argument. See Marsh, 223 F.3d at 1220 (“[A] habeas


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petition filed after a previous petition has been dismissed without prejudice for

failure to exhaust state remedies does not relate back to the earlier petition.”).

The 1999 petition was dismissed for failure to exhaust, and this subsequent

habeas petition may not be viewed as part of the 1999 petition. Given that this

petition was not filed until September 2001, the petition is time-barred.

      Accordingly, we GRANT Mr. Yarborough’s motion to file a supplemental

brief, DENY a COA, and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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