                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 7 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


FRANCISCO JAVIER CAMPOS, JR.,

          Petitioner-Appellant,
                                                       No. 01-6333
v.                                            (Western District of Oklahoma)
                                                (D.C. No. CV-01-340-R)
BRENT FATKIN, Warden,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, 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 case is

therefore ordered submitted without oral argument.

      This case is before the court on a request by Francisco Javier Campos, Jr.

for a certificate of appealability (“COA”). Campos seeks a COA so he can


      *
       This order and judgment is not binding precedent, except under the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.
appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition.     See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of

a § 2254 petition unless the petitioner first obtains a COA). Because Campos has

not made a substantial showing of the denial of a constitutional right, he is not

entitled to a COA and his appeal is dismissed.      See id. § 2253(c)(2).

       Campos pleaded guilty to three counts of shooting with intent to kill, one

count of discharging a firearm with intent to kill, and one count of unauthorized

use of a motor vehicle. On September 17, 1992, Campos was sentenced to 128

years’ imprisonment. Campos did not file a direct appeal. Campos’ § 2254

habeas corpus petition was not filed with the United States District Court for the

Western District of Oklahoma until February 22, 2001.

       Campos’ § 2254 petition was referred to a United States magistrate judge

for initial proceedings.   See 28 U.S.C. § 636(b)(1)(B). The magistrate judge

entered an order to show cause, directing Campos to show cause why his petition

should not be dismissed as untimely under 28 U.S.C. § 2244(d). Campos

responded to the order to show cause arguing that his petition was timely filed

pursuant to 28 U.S.C. § 2241(d)(1)(D). Campos also asserted that the one-year

limitations period should be equitably tolled because of extraordinary

circumstances and because he is actually innocent of the charges to which he

pleaded guilty.


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       In his Report and Recommendation, the magistrate judge assumed that 28

U.S.C. § 2241(d)(1)(D) applied but concluded that Campos’ § 2254 petition

should have been filed no later than March 16, 2000. The magistrate judge

further concluded that Campos had failed to diligently pursue his federal

constitutional claims and had failed to identify any circumstances that would

support the equitable tolling of the limitations period.   See Miller v. Marr , 141

F.3d 976, 978 (10th Cir. 1998). Accordingly, the magistrate judge recommended

that Campos’ § 2254 petition be dismissed as time-barred.

       Campos filed a timely objection to the Report and Recommendation.

Campos did not dispute the calculation of the one-year limitations period

pursuant to § 2241(d)(1)(D), but renewed his arguments that the period should be

equitably tolled. The district court considered Campos’ objections but adopted

the Report and Recommendation and dismissed Campos’ § 2254 petition as

untimely. The court specifically rejected Campos’ contention that he had

provided sufficient evidence to demonstrate that he is actually innocent.

       The analysis employed by the magistrate judge and the district judge to

support the conclusion that Campos’ § 2254 petition is untimely is thoroughly set

forth in the Report and Recommendation and the district court’s Order. This

court has reviewed Campos’ application for a COA, his appellate brief, the

district court’s Order dated July 30, 2001, the Report and Recommendation dated


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May 25, 2001, and the entire record on appeal. That review clearly demonstrates

the district court’s dismissal of Campos’ § 2254 petition as untimely is not

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

Accordingly, we deny Campos’ request for a COA and       dismiss his appeal.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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