                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         March 14, 2007
                                     TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                          Clerk of Court

 STEV EN CO RY HAW S,

          Petitioner - A ppellant,

 v.
                                                          No. 05-4141
 JERRY JORGENSEN, W arden,                                  (D. Utah)
                                                 (D.Ct. No. 2:05-CV-274-DAK)
          Respondent - Appellee.



                    OR D ER D EN YING LEAVE TO PROCEED
                        ON APPEAL IN FORM A PAUPERIS,
                 D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                         A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, 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 case is

therefore ordered submitted without oral argument.

      Steven Cory Haws, a state inmate appearing pro se, 1 seeks a certificate of

appealability (COA) allowing him to appeal the district court’s denial of his




      1
        We liberally construe Haws’ pro se pleadings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
petition for writ of habeas corpus under 28 U.S.C. § 2254. 2 Because he has failed

to make “a substantial showing of the denial of a constitutional right” as required

by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss his application.

                                    I. Background

      In September 2000, Haws was charged in Utah state court with violating

U tah’s Clandestine D rug Lab A ct, Ut AH C ODE A NN . § 58-37d-4. He filed two

motions to suppress the statements he made to Detective Nate Thompson on the

date of his arrest, arguing Detective Thompson gave incomplete M iranda

warnings and Haws did not knowingly, intelligently and voluntarily waive his

Fifth A mendment rights. The state court denied both motions. Haws proceeded

to trial, where he was convicted. He was sentenced to not less than five years to

life imprisonment. He filed a direct appeal, challenging the trial court’s denial of

his motions to suppress. The Utah Court of Appeals denied relief on M ay 15,

2003, and the U tah Supreme C ourt denied certiorari on October 30, 2003. Haw s

did not file any state petitions for post-conviction relief.

      On M arch 30, 2005, Haws filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of

Utah alleging violations of his Fifth and Fourteenth Amendment rights arising out

of the state trial court’s denials of his motions to suppress. However, because the



      2
        We construe Haws’ notice of appeal as a request for a COA. F ED. R. A PP. P.
22(b)(2); Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir. 1997)

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petition was signed on M arch 20, 2005, the district court deemed it filed on that

date pursuant to the prisoner mailbox rule. See Rule 3(d), Rules Governing §

2254 Cases. On April 25, 2005, the district court denied Haws’ petition as

untimely. The court concluded Haws’ erroneous belief that the four-year statute

of limitations for civil rights cases applied to habeas corpus petitions did not

warrant equitable tolling. 3 Haws filed his notice of appeal on June 3, 2005. 4

                                      II. Discussion

       Unless we issue a CO A, Haws may not appeal the dismissal of his § 2254

petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the issuance of a

COA only where a petitioner has made a substantial showing of the denial of a

constitutional right.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). To make the requisite showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . the petition should have been resolved


       3
         See Fratus v. DeLand, 49 F.3d 673 (10th Cir. 1995) (“Utah’s four-year residual
statute of limitations, Utah Code Ann. § 78-12-25(3), governs suits brought under [§]
1983.”).
       4
         Haws never filed a request for a COA with the district court but did file a notice
of appeal. “If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability or state why a certificate should
not issue.” F ED. R. A PP. P. 22(b)(1). The district court never ruled on the COA issue.
We deem the district court’s failure to issue a COA within thirty days after the filing of
the notice of appeal as a denial of the certificate. 10 TH C IR. R. 22.1(c). Moreover, while
Haws’ notice of appeal was filed more than thirty days after the district court’s order
denying his petition, see F ED. R. A PP. P. 4(a)(1)(A), because no separate judgment was
entered, the time for filing an appeal did not begin to run until 150 days after the district
court’s order was entered in the civil docket (April 26, 2005), and his appeal is timely.
F ED. R. C IV. P. 58(a)(1), (b)(2); F ED. R. A PP. P. 4(a)(7)(A)(ii)

                                               -3-
in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. (quotations omitted). “W hen the district

court denies a habeas petition on procedural grounds . . ., a COA should issue when

the prisoner shows, at least, 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. M cDaniel, 529 U.S. 473, 484 (2000).

       W ith these principles in mind, we have carefully reviewed the record and the

district court’s order. W e agree Haws’ § 2254 petition is untimely. In general, state

prisoners have one-year from the date their convictions become final by the

conclusion of direct review in which to file a habeas petition in federal court. 28

U.S.C. § 2244(d)(1)(A). Here, Haws’ conviction became final on January 28, 2004, 5

and the one year period of limitations commenced the next day, January 29, 2004.



       5
          Rule 13 of the Supreme Court Rules requires a petition for writ of certiorari to
the United States Supreme Court to be filed within ninety days after entry of the lower
court’s judgment (in this case, ninety days after the Utah Supreme Court’s denial of
certiorari on October 30, 2003). Thus, Haws’ state court conviction became final on
January 28, 2004, when the time for filing a certiorari petition with the United States
Supreme Court expired. This is true even though he did not file a certiorari petition. See
28 U.S.C. § 2244(d)(1)(A) (the one-year limitations period shall run from “the date on
which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review”) (emphasis added); Locke v. Saffle, 237 F.3d 1269, 1273
(10th Cir. 2001) (“Under [§ 2244(d)(1)(A)], a petitioner’s conviction is not final and the
one-year limitation period for filing a federal habeas petition does not begin to run until . .
. after the United States Supreme Court has denied review, or, if no petition for certiorari
is filed, after the time for filing a petition for certiorari with the Supreme Court has
passed.”).

                                               -4-
Therefore, he had up to and including January 29, 2005, in which to file his § 2254

petition. See U nited States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003). H e

did not file it until M arch 20, 2005. Thus, absent equitable tolling, his petition is

untimely. 6

       Equitable tolling “is only available w hen an inmate diligently pursues his

claims and demonstrates that the failure to timely file w as caused by extraordinary

circumstances beyond his control.” M arsh, 223 F.3d at 1220. “[I]gnorance of the

law, even for an incarcerated pro se petitioner, generally does not excuse prompt

filing.” Id. (quotations omitted). The district court correctly found Haws’ belief that

a longer statute of limitations applied to habeas corpus petitions did not excuse his

late filing.

       Haws’ request for a COA is DENIED and his application is DISM ISSED.

                                            Entered by the C ourt:

                                            Terrence L. O ’Brien
                                            United States Circuit Judge




       6
           Haws does not assert any statutory basis for tolling. See 28 U.S.C. § 2244(d).

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