                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   September 8, 2014
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT


 DAVID BRIAN MORGAN,

              Petitioner - Appellant,
                                                       No. 14-6130
 v.                                             (D.C. No. 5:14-CV-00337-R)
                                                       (W.D. Okla.)
 MIKE ADDISON, Warden,

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.


      Nearly three years after his conviction in state court for kidnapping, rape,

and other crimes, David Morgan filed a petition in federal court asking to have

his convictions and sentences set aside. The district court found the petition

untimely and dismissed it. Mr. Morgan now seeks a certificate of appealability

(COA) to contest that ruling in this court. By statute, however, we may grant a

COA only if the petitioner first offers a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To clear that hurdle, Mr. Morgan




      *
         This order is not binding precedent except under the doctrines of law of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 and 10th Cir. R. 32.1.
must demonstrate that reasonable jurists could debate whether his petition should

have been resolved differently. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      That much he has not done. The district court held Mr. Morgan’s petition

untimely and we see no reasoned basis for disputing that conclusion. Federal law

normally requires a state prisoner to file his federal habeas petition within one

year of his state conviction becoming final. See 28 U.S.C. § 2244(d)(1). Here,

Mr. Morgan waited nearly three years to file his federal habeas petition. Plainly,

it was untimely just as the district court observed.

      To be sure, the statutory deadline is subject to equitable tolling in “rare and

exceptional” circumstances. Broadus v. Hartley, 345 F. App’x 345, 348 (10th

Cir. 2009) (quoting Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003)). A

litigant generally “bears the burden of establishing two elements: (1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way” preventing timely filing. Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005). Mr. Morgan, however, cannot meet either requirement. First, the

record does not show that he diligently pursued his habeas rights. Even crediting

Mr. Morgan’s assertions that he was on twenty-four-hour lockdown for the first

eight months of confinement and that the hourly requirements of his subsequent

job assignment prevented him from accessing the law library, he still falls short

of explaining why it took nearly three years to lodge his petition. Second, Mr.

Morgan says he waited to file until now only because his attorney didn’t tell him

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of his right to do so earlier. But this court has previously held similar claims

insufficient to satisfy the “extraordinary circumstances” test and we do not see

how we might now faithfully hold otherwise. See, e.g., Montoya v. Milyard, 342

F. App’x 430, 432-33 (10th Cir. 2009); Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000).

      The application for a COA is denied and the appeal is dismissed.

                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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