                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 9 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


DANNY RAY SELLERS,

             Petitioner-Appellant,
                                                       No. 99-6027
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. 98-CV-1367-T)
LENORA JORDAN,

             Respondent-Appellee.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, 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 court

therefore orders the case submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
       Danny Ray Sellers, proceeding     pro se , seeks a certificate of appealability

so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be

taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a certificate of appealability). Because Sellers failed to file his petition

for writ of habeas corpus in a timely manner, this court    DENIES Sellers a

certificate of appealability and   DISMISSES this appeal.      See id. § 2244(d)

(imposing a one-year limitation period on an application for a writ of habeas

corpus).

       On August 13, 1996, Sellers appeared before the District Court of Alfalfa

County, Oklahoma and, pursuant to a plea agreement, entered a plea of         nolo

contendre to a charge of first degree rape. On the same day, Sellers was

sentenced to 20 years imprisonment, 11 of which were suspended. Sellers never

made a motion to withdraw his plea and never challenged his conviction or

sentence on direct appeal. On May 23, 1997, Sellers filed an Application for

Post-Conviction Relief with the state district court (the “first application”). In

his first application, Sellers raised two grounds for relief: (1) that his counsel was

constitutionally ineffective and (2) that he was denied due process of law because

there was no factual basis before the district court to support his plea. The state

district court denied relief on May 23, 1997. Sellers failed to appeal the denial of


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post-conviction relief until July 8, 1997 when he filed a Petition in Error with the

Oklahoma Court of Criminal Appeals (the “OCCA”). Because Sellers’ Petition

in Error was filed more than thirty days after the entry of the order denying his

first application, the OCCA dismissed Sellers’ appeal as untimely. Sellers then

filed a Petition for An Appeal Out of Time with the OCCA. The OCCA denied

this petition because Sellers had failed to first seek relief from the denial of his

Petition in Error from the state district court. Sellers then filed a second

Application for Post-Conviction Relief (the “second application”) with the state

district court. In his second application, Sellers raised five grounds for relief, all

of which involved either an ineffective assistance of counsel claim or a denial of

due process claim. The district court denied Sellers’ second application on June

4, 1998. Sellers appealed that decision to the OCCA. The OCCA ultimately

affirmed the denial of Sellers’ second application.

      Sellers filed the instant § 2254 Petition for Writ of Habeas Corpus (the

“habeas petition”) with the United States District Court for the Western District

of Oklahoma on September 30, 1998. In his habeas petition, Sellers reasserts the

five ineffective assistance and due process claims he originally raised in the

second application. Sellers’ habeas petition was referred to a magistrate judge

for initial proceedings. The magistrate judge issued a Report and

Recommendation in which he recommended that the habeas petition be dismissed


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because it had not been filed within one year of Sellers’ conviction and

sentencing and, therefore, was untimely. The magistrate judge considered several

factors raised by Sellers in support of the tolling of the one-year limitations

period including Sellers’ claims that: (1) the limitations period was tolled during

the time the first and second applications were pending in state court, (2)

unconstitutional state action impeded the filing of the habeas petition, and (3)

after-discovered evidence established that he is actually innocent. The magistrate

judge, however, concluded that Sellers had failed to establish a basis for tolling

the limitations period and recommended that Sellers’ habeas petition be

dismissed as untimely.

      Sellers filed an objection to the magistrate judge’s Report and

Recommendation. In that objection, Sellers argued that the magistrate judge had

failed to adequately consider the factors that would support the equitable tolling

of the one-year limitations period. The federal district court, over Sellers’

objections, adopted the Report and Recommendation and ordered Sellers’ habeas

petition dismissed as untimely. The district court specifically found that Sellers

had failed to file his habeas petition within the one-year limitations period and

had failed to demonstrate any basis on which the limitations period could be

tolled. Sellers filed an Application for Certificate of Appealability to appeal the




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federal district court’s denial of his habeas petition. That request was denied and

Sellers appealed that denial to this court.

       Sellers is not entitled to receive a certificate of appealability unless he can

make “a substantial showing of the denial of a constitutional right.”            Id. §

2253(c)(2). Sellers can make such a showing by demonstrating the issues raised

are debatable among jurists, a court could resolve the issues differently, or that

the questions presented deserve further proceedings.          See Barefoot v. Estelle , 463

U.S. 880, 893 n.4 (1983). Upon        de novo review of Sellers’ Application for

Certificate of Appealability, the magistrate judge’s Report and Recommendation,

the district court’s Order, and the entire record on appeal, this court concludes

the district court’s resolution of Sellers’ claims is not reasonably debatable,

subject to a different resolution on appeal, or deserving of further proceedings.

See id. Consequently, Sellers has not made a substantial showing of the denial of

a constitutional right and is not entitled to a certificate of appealability.        See 28

U.S.C. § 2253(c)(2). Accordingly, Sellers’ application for a certificate of

appealability is DENIED for substantially those reasons set out in the magistrate

judge’s Report and Recommendation dated December 4, 1998, and the district

court Order dated December 29, 1998, and the appeal is therefore                DISMISSED .

                                            ENTERED FOR THE COURT




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Michael R. Murphy
Circuit Judge




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