UNITED STATES COURT OF APPEALS TENTH CIRCUIT
KENNETH RAY LEE, a/k/a Kenneth Ray Thompson, Petitioner - Appellant,

v. ALFRED BIGELOW, Warden, Respondent - Appellee. No. 13-4147 (D. Utah) (D.C. No. 2:12-CV-00727-DB)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before HARTZ , GORSUCH , and PHILLIPS , Circuit Judges.
On July 23, 2012 , Kenneth Thompson, a federal prisoner proceeding pro se , filed a petition under 28 U.S.C. § 2254, challenging his confinement in Utah State Prison. The United States District Court for the District of Utah di smissed Thompson’s petition as untimely and found no basis to excuse his la te filing. On appeal, Thompson requests that we issue a certificate of a ppealability. Exercising jurisdic tion under § 1291, we decline his request and dismiss this appeal. 1

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule 32.1.

1 Although the district court did not properly enter final judgment in this matter, we nevertheless have jurisdiction over this appeal. See United States v. Mendoza , 698 F.3d 1303, 1309 n.3 (10th Cir. 2012) (finding no reason to remand for proper entry of judgment where there is no question as to the finality of the district court’s decision). FILED United States Court of Appeals Tenth Circuit 

### February 13, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - A certificate of appealability is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 28 U. S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). To receive a certificate of appealab ility, a petitioner must make “a substantial showing of the denial of a constitutional ri ght.” 28 U.S.C. § 2253(c)(2). Because the district court denied Thompson ’s habeas petition on procedural grounds, he must also show that “jurists of reason would find it deba table whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2 000) (emphasis added). In this case, it is beyond debate that the district court correctly dismissed Thompson’s habeas petition as untimely. The underlying proceedings in this case are somewhat unique from a procedural standpoint. In 1984, Thompson was convicted in Utah State c ourt and sentenced to a term of 1–15 years for a weapons possession charge and a concurrent sentence of 5 years to life for a separate habitual offender charge. Over twenty years late r, the State of Utah filed a motion to correct Thompson’s sentence because subsequent case law had made clear that Utah does not recognize a stand-al one habitual offender charge for which a defendant can be separately sentenced. The Ut ah district court granted the State’s motion but did not change the length of Thom pson’s sentence. Instead, the court enhanced its original sentence for the wea pons possession charge (given Thompson’s habitual offender status) to a term of 5 years to life in pr ison. Thompson was repr esented by counsel during the re-sentencing proceedings bu t appears to have appealed the district court’s decision

pro se . The Utah Court of Appeals dismissed his appeal on November 24, 2008 for failure to file a docketing statement.- 3 - On January 2, 2009, T hompson, still proceeding pro se , filed a state petition for post-conviction relief. The post-conviction c ourt summarily dismissed this petition on April 28, 2009, finding all claims procedura lly barred. Thompson then filed an untimely notice of appeal in January of 2011, which th e Utah Court of Appeals dismissed for lack of jurisdiction. Again, Thompson did not f ile the instant § 2254 petiti on until July 23, 2012. Applications under § 2254 are subject to a one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). The statute provides several possible starting da tes for the limitations period, but the one applicable here is “the da te on which the judgment becam e final by the conclusion of direct review or the expiration of the ti me for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). In his petition for habeas review, Thompson asserts va rious claims stemming from his convictions and original sentencing in 19 84 and his re-sentencing in 2008. Any claims relating to the 1984 conviction and sentence are too late by decades. As for any claims relating to Thompson’s re-sentencing, the cloc k began to run on t hose claims when the court’s judgment became final—in this case, upon the conclusion of Thompson’s direct appeal. This occurred on December 24, 2008, when Thompson did not seek certiorari from the Utah Supreme Court 30 days after the Court of Appeals dismissed his initial appeal for failure to fi le a docketing statement. See Utah R. App. P. 48(a) (allowing 30 days to petition for a writ of certiorari).- 4 - The limitations period was then tolled by the proper filing of an “application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2); see Gibson v. Klinger , 232 F.3d 799, 8 04 (10th Cir. 2000) (recognizing that AEDPA limitations period is tolled while post-conviction application is pending). By our calcula tions, however, the state pos t-conviction petition was only pending from January 2, 2 009 (when Thompson filed), until May 28, 2009 (when the time for seeking review of the post-conviction court’s dismissal expired). See Utah R. App. P. 4(a) (providing jurisdictional 30 -day time limit to appeal a final order). Accordingly, the limitations period was only tolled for 146 days. Subtracting these days from the total amount of time it took Thompson to file his § 2254 petition (beginning on the date on which the state c ourt’s judgment on re-sentenc ing became final and ending on the date of filing), we find that Thompson took over three years to file his § 2254 petition—making it over two years too late. The district court also reached this conclusion based on similar calculations. 2 Thompson can only avoid the time bar if he can show that he is actually innocent, see McQuiggin v. Perkins , 133 S.Ct. 1924, 1931 (2013), or that he has diligently pursued a judicial remedy but extraordinary circumst ances beyond his control prevented him from meeting the deadline, see Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005); Marsh v.
Soares , 223 F.3d 1217, 1220 (10th Cir. 2000 ). Thompson does not assert an actual innocence claim, nor does he offer up any fact s or argument that might justify equitable

2 The district court’s order mistakenly cites the date of filing as July 12, 2012 rather than July 23, 2012. This mistake has no effect on the court’s determination of untimeliness.- 5 - tolling. To the contrary, the record suggests a lack of diligence and, apart from those hardships facing most all pro se litigants, it is devo id of any extraord inary circumstances that would prevent Thompson from filing within one year of re-sentencing. The district court found this much as well and reasonable jurists could not debate whether the court’s refusal to toll the statute of limita tions was an abuse of discretion. See Burger v. Scott , 317 F.3d 1133, 1138 (10th Ci r. 2003) (recognizing that we review a district court’s equitable tolling decision for an abuse of di scretion). In reaching this conclusion, we emphasize that the merits of Thompson’s underly ing habeas claims play no part in the equitable tolling analysis. See 28 U.S.C. § 2244(d)(1). Based on the foregoing, we DENY a ce rtificate of appealability. We GRANT Thompson’s motion to proceed in forma pauperis but DENY all other outstanding motions and DISMISS this appeal.

ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge