* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 9 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANNY RAY SELLERS,

Petitioner-Appellant,

v. LENORA JORDAN,

Respondent-Appellee. No. 99-6027 (W. District of Oklahoma) (D.C. No. 98-CV-1367-T)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he court therefore orders the case submitted without oral ar gument.-2-

Danny Ray Sellers, proceeding pro se , seeks a certificate of appealability so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appea l may not be taken from the denial of a § 2254 habeas petition u nless the petitioner first obtains a certificate of appealability). Because S ellers failed to file his petition for writ of habeas corpus in a timely manner, this court DENIES Sellers a certificate of appealability and DISMISSES this appeal. See id. § 2244(d) (imposing a one-year limitation period on an applic ation for a writ of habeas corpus). On August 13, 1996, Sellers appeared before the Dis trict Court of Alfalfa County, Oklahoma and, pursuant to a plea agreement, entered a plea of nolo contendre to a charge of first degree rape. On the same day , Sellers was sentenced to 20 years imprisonment, 11 of which wer e suspended. Sellers never made a motion to withdraw his plea and never challe nged his conviction or sentence on direct appeal. On May 23, 1997, Seller s filed an Application for Post-Conviction Relief with the state district court (the “first application”). In his first application, Sellers raised two grounds f or relief: (1) that his counsel was constitutionally ineffective and (2) that he was de nied due process of law because there was no factual basis before the district court to support his plea. The state district court denied relief on May 23, 1997. Sell ers failed to appeal the denial of-3-

post-conviction relief until July 8, 1997 when he f iled a Petition in Error with the Oklahoma Court of Criminal Appeals (the “OCCA”). B ecause Sellers’ Petition in Error was filed more than thirty days after the entry of the order denying his first application, the OCCA dismissed Sellers’ appe al as untimely. Sellers then filed a Petition for An Appeal Out of Time with the OCCA. The OCCA denied this petition because Sellers had failed to first s eek relief from the denial of his Petition in Error from the state district court. S ellers then filed a second Application for Post-Conviction Relief (the “secondapplication”) with the state district court. In his second application, Sellers raised five grounds for relief, all of which involved either an ineffective assistance of counsel claim or a denial of due process claim. The district court denied Selle rs’ second application on June 4, 1998. Sellers appealed that decision to the OCC A. The OCCA ultimately affirmed the denial of Sellers’ second application. Sellers filed the instant § 2254 Petition for Writ of Habeas Corpus (the “habeas petition”) with the United States District Court for the Western District of Oklahoma on September 30, 1998. In his habeas p etition, Sellers reasserts the five ineffective assistance and due process claims he originally raised in the second application. Sellers’ habeas petition was r eferred to a magistrate judge for initial proceedings. The magistrate judge issu ed a Report and Recommendation in which he recommended that the hab eas petition be dismissed-4-

because it had not been filed within one year of Se llers’ conviction and sentencing and, therefore, was untimely. The magis trate judge considered several factors raised by Sellers in support of the tolling of the one-year limitations period including Sellers’ claims that: (1) the limi tations period was tolled during the time the first and second applications were pen ding in state court, (2) unconstitutional state action impeded the filing of the habeas petition, and (3) after-discovered evidence established that he is ac tually innocent. The magistrate judge, however, concluded that Sellers had failed t o establish a basis for tolling the limitations period and recommended that Sellers ’ habeas petition be dismissed as untimely. Sellers filed an objection to the magistrate judge’ s Report and Recommendation. In that objection, Sellers argued that the magistrate judge had failed to adequately consider the factors that woul d support the equitable tolling of the one-year limitations period. The federal di strict court, over Sellers’ objections, adopted the Report and Recommendation and ordered Sellers’ habeas petition dismissed as untimely. The district courtspecifically found that Sellers had failed to file his habeas petition within the o ne-year limitations period and had failed to demonstrate any basis on which the li mitations period could be tolled. Sellers filed an Application for Certificate of Appealability to appeal the-5-

federal district court’s denial of his habeas petit ion. That request was denied and Sellers appealed that denial to this court. Sellers is not entitled to receive a certificate of appealability unless he can make “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Sellers can make such a showing by dem onstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983). Upon de novo review of Sellers’ Application for Certificate of Appealability, the magistrate judge’ s Report and Recommendation, the district court’s Order, and the entire record o n appeal, this court concludes the district court’s resolution of Sellers’ claims is not reasonably debatable, subject to a different resolution on appeal, or des erving of further proceedings.
See id . Consequently, Sellers has not made a substantial showing of the denial of a constitutional right and is not entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2). Accordingly, Sellers’ application for a certificate of appealability is DENIED for substantially those reasons set out in the mag istrate judge’s Report and Recommendation dated December 4, 1998, and the district court Order dated December 29, 1998, and the appeal is therefore DISMISSED

. ENTERED FOR THE COURT-6- Michael R. Murphy Circuit Judge