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 proc eeding pro se, seeks a certificate of appealability (“COA”) to appeal the district cour t’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 wa s convicted of first degree robbery in Oklahoma state court following a guilty plea. He was senten ced 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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- 2 - same day. Moore did not appeal. However, he filed an application for state postconviction relief on December 8, 2010. That pe tition was denied on Ja nuary 6, 2011. On April 25, 2011, the Oklahoma Court of Crimin al Appeals affirmed the denial of postconviction relief. Moore filed a § 2254 pe tition 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 providi ng Moore an op portunity to respond, the district court adopted the ma gistrate 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 onl y if Moore can demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been reso lved in a different manner or th at 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 lim itations period on hab eas petitions filed by state prisoners. § 2244(d). This period generally r uns from the date a convi ction became final.

See § 2244(d)(1). Moore’s conviction became final on September 26, 2005, when the time period during which he co uld move to withdraw his guilty plea expired. See Okla.- 3 - 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 lim itations period on equitable grounds. See

Marsh v. Soares , 223 F.3d 1217, 1220 (10th Ci r. 2000) (equitable tolling “is only available when an inmate dilig ently pursues his claims and de monstrates that the failure to timely file was caused by extraordinary ci rcumstances beyond his control”). His state post-conviction applications were not f iled until after the AE DPA 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-co nviction 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 Ci r. 1991), and we accordingly DENY his motion to proceed in forma pauperis.

Entered for the Court

Carlos F. Lucero Circuit Judge