                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        October 24, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                           Clerk of Court



 H ERBER T C OLEM A N ,

       Petitioner - A ppellant,
 v.
                                                          No. 06-6144
                                                     (D.C. No. 06-CV -21-L)
 ERIC FRANKLIN, W arden;
                                                          (W .D. Okla.)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF O K LA H O MA ,

       Respondents - Appellees.



                      OR DER DENYING A CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M C KA Y, and LUCERO, Circuit Judges.


      Herbert Coleman, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the district court’s dismissal of his § 2254

habeas petition. For substantially the same reasons set forth by the district court,

we D EN Y a COA and DISM ISS.

      Coleman pled nolo contendere to robbery and kidnapping charges and was

sentenced to twenty-five years’ imprisonment on October 17, 2003. He did not

directly appeal, but filed an application for post-conviction relief in state district

court on July 6, 2005. That application was denied on October 3, 2005, and the

Oklahoma Court of Criminal Appeals affirmed on December 8, 2005. On January
10, 2006, Coleman filed a § 2254 habeas petition in federal court advancing four

grounds for relief: ineffective assistance of counsel, a Fourth Amendment claim

based on an allegedly illegal nighttime search, a second Fourth Amendment

claim, and cumulative error. The district court dismissed his petition as time-

barred and did not grant a C OA. Coleman now seeks a COA from this court. 1

      28 U.S.C. § 2244(d)(1)(A) provides a one year statute of limitations for

§ 2254 petitions from the date the judgment becomes final. Coleman’s sentence

became final on October 27, 2003, 2 giving him until October 27, 2004 to file a

§ 2254 petition. He did not file until January 10, 2006, well after the limitations

period had run. Nor is Coleman eligible for statutory tolling while his state post-

conviction claims w ere pending. Although “[t]he time during which a properly



      1
         Coleman’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Coleman to show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court did not rule on
whether to grant COA, we assume it w as denied. 10th Cir. R. 22.1(C).
Accordingly, Coleman may not appeal the district court’s decision absent a grant
of COA by this court.
      2
       Coleman had ten days from his sentencing on October 17, 2003 to
withdraw his nolo contendere plea. Okla. Stat. tit. 22, Ch. 18, App., Rule 4.2.

                                        -2-
filed application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be counted toward any

period of limitation under this subsection,” 28 U.S.C. § 2244(d)(2), Coleman did

not file for state post-conviction relief until October 3, 2005, after the limitations

period had run.

      Coleman asks this court to equitably toll the statute of limitations because

he was unaware of his rights. Equitable tolling “is only available w hen an inmate

diligently pursues his claims and demonstrates that the failure to timely file was

caused by extraordinary circumstances beyond his control.” M arsh v. Soares, 223

F.3d 1217, 1220 (10th C ir. 2000). It is well settled that “ignorance of the law,

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

filing.” Id. (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)).

Colem an has not presented the requisite extraordinary circumstances beyond his

control, therefore we decline to apply equitable tolling.

      For the reasons set forth above, Coleman’s motion to proceed in forma

pauperis is GR ANTED, his request for a COA is DENIED, and his appeal is

DISM ISSED.
                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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