                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    April 29, 2014
                                  TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                    Clerk of Court


 WILLIAM RAY TABER,

          Petitioner-Appellant,
 v.                                                     No. 14-5013
                                            (D.C. No. 4:13-CV-00164-JED-FHM)
 JIM FARRIS, Warden,                                    (N.D. Okla.)

          Respondent-Appellee.



           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      After William Taber pleaded guilty to a robbery offense, an Oklahoma state

court sentenced him to 15 years in prison. Mr. Taber then sought but was denied

state post-conviction relief before bringing a federal habeas petition under 28

U.S.C. § 2254. Here, too, Mr. Taber proved unsuccessful because the district

court found that his federal petition was untimely and that none of the potential

grounds for statutory or equitable tolling of the limitations period could alter this

result. Seeking to appeal that dismissal, Mr. Taber asked the district court for a



      *
        This order is not binding precedent except under the doctrines of law of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.
certificate of appealability (“COA”), which the court denied. Now before this

court, Mr. Taber renews his request for a COA.

      We may issue a COA only if the petitioner makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court dismisses a § 2254 petition on procedural grounds, we may issue a

COA only if “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). In this case, we see no way reasonable jurists might debate the district

court’s conclusion that Mr. Taber’s petition is time barred. Generally speaking,

an application for federal habeas relief must be made within one year from the

date on which the conviction became final. See 28 U.S.C. § 2244(d)(1)(A). That

simply didn’t happen here.

      The one-year limitations period for filing a federal habeas petition on most

of Mr. Taber’s claims began running on March 13, 2011, after his conviction

became final, yet he did not file his federal habeas petition until April 16, 2013,

plainly outside the one-year statutory window. Mr. Taber replies by suggesting

that the limitations clock may have tolled during some of this period because of

two pending motions he filed in state court seeking modification of his sentence

and judgment. But even assuming without deciding that these motions tolled the

clock, his federal application remains untimely.




                                        -2-
      Mr. Taber doesn’t dispute this but replies that the limitations period can be

overcome because these periods can be added to still another period where tolling

is warranted — and that when all added together they save his claim. In

particular, he argues that the statutory clock should have been further tolled by

his attempt to appeal the denial of his motion to modify his sentence and

judgment. But as the Oklahoma Court of Criminal Appeals held, Mr. Taber

waived his right to appeal by not withdrawing his guilty plea and appealing his

conviction directly. And Mr. Taber’s improper attempt at appeal does not

constitute “a properly filed application for State post-conviction or other

collateral review” sufficient to toll the one year statute of limitations under

federal law. 28 U.S.C. § 2244(d)(2). As such we do not see how reasonable

jurists might debate the district court’s conclusion that Mr. Taber’s improper

appeal did not render his federal habeas petition timely.

      Having spoken to most of Mr. Taber’s claims, there remains still a subset to

discuss. The statute of limitations for Mr. Taber’s claims relating to the district

court’s denial of sentence credits only began running on May 12, 2011, the day

after Mr. Taber discovered that he was ineligible for those credits. See

§ 2244(d)(1)(D). The district court found, however, that even after accounting for

all possible statutory tolling opportunities Mr. Taber’s last day to file a timely

federal habeas petition on these claims was March 14, 2013 and Mr. Taber waited

until April 16, 2013 to file his petition. For his part, Mr. Taber objects to the

                                         -3-
district court’s conclusion but disputes none of its calculations, findings, or

reasoning. In these circumstances we find it difficult to say a reasonable jurist

could disagree with its assessment that the one-year limitations period on these

claims has passed.

      Neither can we toll the applicable limitations periods for equitable rather

than statutory reasons. Equitable tolling requires a petitioner to show “(1) that he

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

circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008). The district court found that Mr. Taber was not entitled to equitable

tolling because he failed to pursue his state claims diligently, instead interposing

multiple and improper delays. We cannot say here either that any of the district

court’s analysis is reasonably debatable. Accordingly, the application for a COA

is denied and the appeal is dismissed.

                                         ENTERED FOR THE COURT


                                         Neil M. Gorsuch
                                         Circuit Judge




                                          -4-
