                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 20, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 REJEANIA LOUISE MILLER,

              Petitioner - Appellant,                    No. 12-6134
       v.                                             W. D. Oklahoma
 M.B.C.C. FACILITY WARDEN,                      (D.C. No. 5:11-CV-01500-C)
 Millicent Newton Embry,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.



      Proceeding pro se, Oklahoma state prisoner Rejeania Louise Miller seeks a

certificate of appealability (“COA”) so she can appeal the district court’s denial

of the habeas petition she filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order

disposing of a § 2254 petition unless the petitioner first obtains a COA). Miller

was convicted by an Oklahoma jury of trafficking controlled substances,

possessing proceeds derived from the sale of controlled substances, and

possession of marijuana. She was sentenced on April 8, 2005, and the Oklahoma

Court of Criminal Appeals (”OCCA”) affirmed the judgment on June 19, 2006.

Thereafter, Miller filed three motions seeking modification of her sentence. The
first was filed on June 28, 2006, the second on July 26, 2007, and the third on

November 30, 2010. She also filed a state application for post-conviction relief

on December 8, 2008. The OCCA affirmed the district court’s denial of the post-

conviction motion on May 21, 2010.

      Miller filed the instant § 2254 petition on December 14, 2011. In the

petition, Miller asserted a double jeopardy claim, a claim the evidence was

insufficient to support her convictions, a claim her sentence is excessive, and

claims both trial and appellate counsel were ineffective. Respondent filed a

limited response, arguing the petition should be dismissed because it was filed

after the expiration of the one-year limitations period established by the AEDPA.

See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations for § 2254

applications). The matter was referred to a magistrate judge who recommended

the petition be dismissed because it was untimely and Miller did not meet the

standard for equitable tolling. See Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000). Miller filed timely objections to the magistrate judge’s

recommendation and those objections were considered de novo by the district

court. The court, however, adopted the magistrate judge’s recommendation and

dismissed Miller’s § 2254 petition as untimely.

      To be entitled to a COA, Miller must 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. 474, 484-85 (2000) (holding that when a district

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court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Miller’s § 2254 petition as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Because Miller did not petition for a writ of certiorari from

the United States Supreme Court, her convictions became final on September 17,

2006, ninety days after the judgment of conviction was affirmed by the OCCA.

See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007). Even if Miller

was entitled to statutory tolling during the entire time her first two motions for

sentence modification were pending in state court, the one-year limitations period

expired no later than July 31, 2008, one year after the second motion was denied

by the state district court. Miller had one year from that date to file her § 2254

petition. 28 U.S.C. § 2244(d)(1)(A). The petition, however, was not filed until

December 14, 2011. The one-year period was not tolled while Miller pursued

state post-conviction relief because she did not seek any such relief until

December 8, 2008, several months after the one-year period of limitation had

expired. 1 Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

      1
     Miller’s third motion for sentence modification was not filed until
November 30, 2010, more than two years after the limitations period expired.
                                                                    (continued...)

                                          -3-
      Miller asserts the commencement of the one-year limitations period should

be governed by 28 U.S.C. § 2244(d)(1)(D), not § 2244(d)(1)(A), because she was

not aware of the factual predicate of her ineffective assistance claims until she

obtained an affidavit from her trial attorney stating he believed she “did not

receive an adequate defense.” This affidavit is dated October 22, 2008.

Assuming that is the date on which the evidence contained in the affidavit could

have been discovered through the exercise of due diligence, Miller’s federal

habeas petition is still untimely. Even if the limitations period began on October

22, 2008, and was statutorily tolled from December 8, 2008 to May 21, 2010 (i.e.,

the entire time her state post-conviction application was pending in state court),

Miller’s federal habeas petition was not filed until December 14, 2011, many

months after the end of the one-year period.

      We deny Miller’s request for a COA and dismiss this appeal. Miller’s

motion to proceed in forma pauperis on appeal is granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




      1
       (...continued)
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).


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