UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE FLORES, Petitioner–Appellant,

v. EDDIE WILSON, Warden, Wyoming State Penitentiary; BRUCE SALZBURG, Attorney General of the State of Wyoming, Respondents–Appellees. No. 11-8056 (D.C. No. 2:11- CV-00125-NDF) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , EBEL , and GORSUCH , Circuit Judges.

Jose Flores, a state prisoner appearing pro se, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We deny a Certificate of Appealability (“COA”) and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### December 12, 2011

Elisabeth A. Shumaker Clerk of Court- 2 - I In 1976, Flores was convicted of first-degree mu rder and sentenced to death. On appeal, the Wyoming Supreme Court reversed Flores’ conviction and remanded for a new trial. Flores v. State, 572 P.2d 746 (W yo. 1977). Instead of facing trial once again, Flores pled guilty to first-de gree murder and was sentenced to life imprisonment. After unsuccessfully pursuing post-convic tion relief in state court in 2010 and 2011, Flores filed a federal ha beas petition on April 6, 2011. The district court dismissed the petition as untimely, noting that Flores filed the petition over a decade after the deadline mandated by the Antite rrorism and Effective Death Penalty Act (“AEDPA”). In doing so, the district court concluded that Flores had not demonstrated exceptional circumstances to warrant equitabl e tolling of his untimely petition.

II We will grant a COA “only if the applican t has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Flores must demonstrate “that reasonable jurist s could debate whether (or, for that matter, agree that) the petition sh ould have been resolved in a di fferent manner or that the issues presented were adequate to deserve encour agement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). We liberally construe Flores’ pro se filings. Erickson v. Pa rdus, 551 U.S. 89, 94 (2007). Under AEDPA, the limitations period for filing a federal hab eas petition generally- 3 - runs from the date on which the state judgm ent becomes final. 28 U.S.C. § 2254(d). However, “[w]here a conviction became final before the AEDPA took effect . . . the one year limitation period for a [pe tition] starts on AEDPA’s effec tive date, April 24, 1996.” Fisher v. Gibson, 262 F.3d 11 35, 1142 (10th Cir. 2001). Fl ores’ conviction became final over three decades ago, and as such, he was required to file his petition by April 24, 1997. There is thus no question that his 2011 petition is untimely. Flores argues that we should toll the AEDPA statute of limitations and consider

the merits of his claims. In this circuit, “AEDPA’s one-year statute of limitations is subject to equitable tolling but only in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 79 9, 808 (10th Cir. 2002) (quotation om itted). Flores asserts that his case presents an exceptional circumstance be cause he was not aware that he had an

ineffective assistance of counsel claim until years after his conviction became final. Specifically, Flores claims that counsel incorrectly informed him that he was facing the death penalty after the reversal of his orig inal conviction, and that he only recently learned that this was problematic. Regardless of how we interpret Flores’ argu ments, they are insufficient to justify tolling the AEDPA statute of limitations. The argument that Flores only recently learned of the legal bases for his claims is meritless. “[I]t is well established that ignorance of the law, even for an incarcerated pro se petitione r, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quotation omitted). Furthermore,- 4 - even if Flores is asserting th at he only recently learned th e facts necessary to bring his claim, the only source he offers for these fact s is an unnamed prisoner he met in August, 2010. Absent an explanation of why he could not have discovered these facts earlier, this is insufficient. See Marsh, 223 F.3d at 1220 (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 beyo nd his control”). Equitable tolling is therefore inappropriate.

Flores further contends that it is error to apply a “state procedural bar” to his

ineffective assistance of counsel claim becaus e he was represented at trial and on appeal by the Wyoming Public Defender’s office. The issue of timeliness as it relates to Flores’ petition, however, is statutory in nature and unrelated to any state procedural bar. We

thus see no merit in th is claim.

III

We DENY a COA and DISMISS the appeal. We GRANT Flores’ motion to proceed in forma pauperis.

Entered for the Court

Carlos F. Lucero Circuit Judge