                                                                          F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     December 26, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 RODNEY JEROM E BURTON,
               Petitioner–Appellant,                     No. 06-6237
          v.                                      (D.C. No. 06-CV-267-LRW )
 JUSTIN JONES, Director,                                 (W . D. Okla.)
               Respondent–Appellee.



                                       OR DER *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      After examining Petitioner’s brief and the record on appeal, this panel has

determined unanimously that oral argument would not materially assist 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, a state inmate appearing pro se, seeks a certificate of

appealability to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. In his petition, Petitioner sought to challenge his O klahoma state

conviction for trafficking in illegal drugs. The petition was denied as untimely,



      *
        This order is not binding precedent except under the doctrines of law of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).
and the district court declined to issue a certificate of appealability in the matter.

      Petitioner argues that the magistrate judge and the district court incorrectly

calculated the limitations period. First, he argues that, for tolling purposes, the

ninety-day period for filing a petition for writ of certiorari should be calculated

from the date on which the Oklahoma Court of Criminal Appeals (“OCCA”)

issued its mandate, rather than the date on which the OCCA affirmed his

conviction. The Supreme Court’s rules clearly provide, however, that “[t]he time

to file a petition for a writ of certiorari runs from the date of entry of the

judgment or order sought to be reviewed, and not from the issuance date of the

mandate (or its equivalent under local practice).” Rule 13.3, Rules of the

Supreme Court of the United States.

      Next, Petitioner argues that, because the OCCA allowed him to appeal out

of time, the limitations period should be tolled for the entire period between his

initial filing for post-conviction relief and the state appellate court’s final denial,

including the period between the expiration of his time to appeal and his request

for leave to appeal out of time. W e rejected this tolling argument in Gibson v.

Klinger, 232 F.3d 799 (10th Cir. 2000).

      Finally, Petitioner argues that the limitations period should be equitably

tolled because of counsel’s failure to forward him a letter advising him of the

OCCA’s decision to deny his post-conviction appeal. However, we note that

“attorney error is generally not a basis for equitable tolling.” Pink v. M cKune,

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146 Fed. App’x 264, 267 (10th Cir. 2005) (unpublished).

      To obtain a certificate of appealability, Petitioner must make a “substantial

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

his petition was rejected on procedural grounds, Petitioner must demonstrate “that

jurists of reason would find it debatable w hether 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.

M cDaniel, 529 U.S. 473, 484 (2000).

      After carefully reviewing Petitioner’s filings, the magistrate judge’s Report

and Recommendation, the district court’s ruling, and the record on appeal, we are

not persuaded that jurists of reason would find debatable or incorrect the district

court’s dismissal of the petition as untimely. W e therefore DENY Petitioner’s

request for a certificate of appealability and DISM ISS the appeal. W e do,

however, GR A N T Petitioner’s motion to proceed in forma pauperis.



                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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