* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order is not binding precedent, except under the do ctrines of law of the case, res judicata, and collateral estoppel. 

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

### January 26, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKY RENA ALEXANDER, Petitioner-Appellant, v. MIKE ADDISON, Warden, Respondent-Appellee. No. 05-6062 (D.C. No. CIV-04-1703-M) (W.D. Okla.)

ORDER *

Before EBEL , McKAY and HENRY , Circuit Judges.
Petitioner-Appellant Ricky Alexander, a prisoner ap pearing pro se , filed a 28 U.S.C. § 2254 petition in federal district court , challenging his 1990 jury convictions of robbery with a dangerous weapon and attempted kidnaping. The district court dismissed Mr. Alexander’s petition p ursuant to § 2244(d)(1) on the ground that it was time-barred. The court subseque ntly denied Mr. Alexander’s request for a Certificate of Appealability (COA). We deny Mr. Alexander’s- 2 -

request that this court grant his motion for a COA to challenge the district court’s dismissal of his habeas corpus petition. I. DISCUSSION Where, as here, “the district court denies a habeas petition on procedural grounds . . ., a COA should issue when the prisonershows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its proce dural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (emphasis added). The d istrict court judge adopted the report and recommendation of the magist rate judge, which provided a well-reasoned conclusion that Mr. Alexander’s petit ion was time-barred. Because we agree with the magistrate judge’s conclusion andfind the district court’s procedural ruling was therefore undebatably correct , we deny Mr. Alexander’s motion for a COA. As a general rule, the one-year period of limitatio ns under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) run s from the date a judgment of conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Because on February 2, 1994 the state appellate court affirmed Mr. Alex ander’s convictions on direct review, those convictions became final on May 2, 19 94. See Locke v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001) (indicating convic tion becomes final upon1 Specifically, Mr. Alexander’s petition alleged th at the trial court’s order

to run his two 500-year sentences consecutively con stituted an exceptional (continued...) - 3 - expiration of period within which petitioner can fi le a petition for writ of certiorari with the United States Supreme Court). However, because Mr. Alexander’s convictions became final before the eff ective date of AEDPA—April 24, 1996, see 28 U.S.C. § 2244—he had one year from that date to file his petition; that is, he had until April 24, 1997. Ho ggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). Mr. Alexander filed his pet ition on December 15, 2004. The district court therefore properly ruled that hi s petition was untimely unless statutory or equitable tolling principles apply. W e agree that they do not. The tolling provision of § 2244(d)(2) for time spent in state post-conviction proceedings does not apply where, as here, a petiti oner does not file his applications for post-conviction relief until afterthe end of the applicable oneyear grace period. See Fisher v. Gibson , 262 F.3d 1135, 1142-43 (10th Cir. 2001). The extended statute of limitations in § 22 44(d)(1)(C) applies only if “the constitutional right asserted . . . has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review .” The magistrate judge liberally construed Mr. Alexander’s pro se petition as relying on Blakely v. Washington , 542 U.S. 296 (2004) to invoke § 2244(d)(1)(C)’s p rovision for newly recognized constitutional rights. 1 But Blakelywas inapplicable to Mr.1 (...continued)

enhancement in violation of his constitutional righ ts as set forth in Blakely

.

2 Furthermore, for the reasons given by the magistr ate judge, we seriously doubt whether Mr. Alexander’s two 500-year sentence s, to run consecutively, required any factfinding by the court. Without suc h judicial factfinding, Blakely would be inapplicable even if that decision applied retroactively for purposes of collateral review. - 4 - Alexander’s criminal case because, for purposes of §§ 2254 and 2255 habeas petitions, “Blakelydoes not apply retroactively to convictions that w ere already final at the time the Court decided Blakely , June 24, 2004.” United States v. Price , 400 F.3d 844, 849 (10th Cir. 2005), cert. denied2005 WL 3144122 (2005). Mr. Alexander’s convictions were final long before that date. The magistrate judge therefore correctly concluded that Blakelywas inapplicable to Mr. Alexander’s criminal case and, consequently, did no t entitle him to invoke § 2244(d)(1)(C). 2 Equitable tolling also does not apply. We agree wi th magistrate judge’s conclusion that Mr. Alexander has “shown neither du e diligence in pursuing his claims nor ‘extraordinary circumstances’ which prev ented him from preparing and filing his habeas petition by April 24, 1997.” See Serrano v. Williams , 383 F.3d 1181, 1186 (10th Cir. 2004) (directing that equitab le tolling applies only in “rare and exceptional circumstances”) (quotations omitted ). II. CONCLUSION- 5 -

Because Mr. Alexander filed his federal habeas peti tion after the one-year grace period and neither statutory nor equitable to lling applies, we find the district court’s procedural ruling that Mr. Alexand er’s § 2254 petition was timebarred undebatably correct. We therefore DENY his request for a COA and DISMISS his appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge