* This order and judgment is not binding precedent, e xcept under the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

### JAN 27 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KELVIN REYNOLDS, Petitioner - Appellant,

v. REGINALD HINES, Warden, Lexington Assessment & Reception Center, Respondent - Appellee. No. 02-7043 D.C. No. 01-CV-59-P (E.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , 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 case is therefore ordered submitted without oral argument.1 See Miller v. Marr , 141 F.3d 976, 977 (10th Cir. 1998).

2 See 28 U.S.C. § 2244(d)(2). -2- This case is before the court on Kelvin Reynolds’ r equest for a certificate of appealability (“COA”). Reynolds seeks a COA so that he can appeal the district court’s denial of his 28 U.S.C. § 2254 hab eas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be take n from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court” unless the petitio ner first obtains a COA). Because Reynolds has not made “a substantial showin g of the denial of a constitutional right,” this court denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2). The district court dismissed Reynolds’ petition as untimely under 28 U.S.C. § 2244(d). In particular, the district court noted that Reynolds’ Oklahoma state first degree murder conviction became final on Sept ember 25, 1995, when the ninety-day period for seeking a writ of certiorari from the United States Supreme Court expired. Reynolds did not file the instant § 2254 habeas petition, however, until November 29, 2000. The district court noted that counting the start date of the one-year limitations period from April 24, 1996 , the effective date of the Antiterrorism and Effective Death Penalty Act of 19 96, 1 and excluding the time Reynolds had pending a properly filed application f or state post-conviction relief, 2-3-

Reynolds’ federal habeas petition was filed almost one-year after the expiration of the limitations period set out in § 2244(d)(1). Th e district court also rejected Reynolds’ request that the limitations period be eq uitably tolled. In so doing, the district court noted that Reynolds’ attorney’s inco rrect advice regarding when the limitations period began to run was not the type of extraordinary circumstance entitling Reynolds to equitable tolling. CF. Marsh v. Soars , 223 F.3d 1217, 1220- 21 (10th Cir. 2000); see also Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The district court rejected Reynolds’ claim of actual innocence because he had completely failed to support his allegations of innocence with “new reliable evidence—whether it be exculpatory scientific evide nce, trustworthy eyewitness accounts, or critical physical evidence—that was no t presented at trial.” Schlup v. Delo , 513 U.S. 298, 324 (1995). “When the district court denies a habeas petition o n procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that juris ts 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 procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). This court has closely reviewed Reynolds’ brief on appeal/application for COA, the district court’s order of dismissal, and the entire record on appeal. Our-4-

review demonstrates the district court’s conclusion s that Reynolds’ § 2254 petition is time-barred and that Reynolds is not entitled to equitable tolling are not reasonably debatable. Accordingly, Reynolds ha s not made “a substantial showing of the denial of a constitutional right” an d is not entitled to a COA. 28 U.S.C. § 2253(c). This court DENIES Reynolds’ request for a COA for substantially those reasons set out by the districtcourt in its order of dismissal dated February 6, 2002 and DISMISSES this appeal.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge