UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

THOMAS A. MOORE,

Petitioner–Appellant,

v.

DAVID MILLER, Warden,

Respondent–Appellee.

No. 11-6181

(D.C. No. 5:11-CV-00586-F)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges. 

 Thomas Moore, a state prisoner proceeding pro se, seeks a certificate of 

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas 

petition. We deny a COA and dismiss the appeal. 

I 

 According to his habeas petition, Moore was convicted of first degree robbery in 

Oklahoma state court following a guilty plea. He was sentenced to twenty-five years’ 

imprisonment on September 16, 2005, and a judgment of conviction was entered the 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 30, 2011

Elisabeth A. Shumaker 

Clerk of Court
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same day. Moore did not appeal. However, he filed an application for state postconviction relief on December 8, 2010. That petition was denied on January 6, 2011. On 

April 25, 2011, the Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief. 

 Moore filed a § 2254 petition on May 20, 2011. He claimed his counsel was 

ineffective by advising him that he would be eligible for a sentence of ten years’ 

imprisonment with fifteen years’ suspended sentence. A magistrate judge recommended 

that the petition be dismissed as untimely. After providing Moore an opportunity to 

respond, the district court adopted the magistrate judge’s recommendation and dismissed 

Moore’s petition. 

II

Moore may not appeal the district court’s decision unless this court grants him a 

COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA only if Moore can demonstrate 

“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. McDaniel, 529 U.S. 

473, 484 (2000) (quotations omitted). 

 AEDPA imposes a one-year limitations period on habeas petitions filed by state 

prisoners. § 2244(d). This period generally runs from the date a conviction became final. 

See § 2244(d)(1). Moore’s conviction became final on September 26, 2005, when the 

time period during which he could move to withdraw his guilty plea expired. See Okla. 
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Ct. Crim. App. R. 4.2. Moore’s AEDPA limitations period thus expired on September 

27, 2006. Moore did not file his habeas petition until May 20, 2011, more than four years 

late. 

 Moore does not argue on appeal that he qualifies for equitable tolling; nor do we 

see any basis in the record for tolling the limitations period on equitable grounds. See

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (equitable tolling “is only 

available when an inmate diligently pursues his claims and demonstrates that the failure 

to timely file was caused by extraordinary circumstances beyond his control”). His state 

post-conviction applications were not filed until after the AEDPA limitations period 

expired, and thus do not provide a basis for statutory tolling. See Clark v. Oklahoma, 468 

F.3d 711, 714 (10th Cir. 2006) (state post-conviction proceedings toll AEDPA statute of 

limitations only when “filed within the one year allowed by AEDPA”). 

III

 Because Moore’s habeas petition was untimely, we DENY his request for a COA 

and DISMISS the appeal. Moore has failed to advance “a reasoned, nonfrivolous 

argument on the law and facts in support of the issues raised on appeal,” DeBardeleben v. 

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), and we accordingly DENY his motion to 

proceed in forma pauperis. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge