*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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’ request 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 habeas petition. See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken 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 petitioner first obtains a COA). 

Because Reynolds has not made “a substantial showing 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 September 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 1996,1

 and excluding the time

Reynolds had pending a properly filed application for 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). The district court also rejected

Reynolds’ request that the limitations period be equitably tolled. In so doing, the

district court noted that Reynolds’ attorney’s incorrect 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 evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Schlup v.

Delo, 513 U.S. 298, 324 (1995).

“When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists 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 conclusions that Reynolds’ § 2254

petition is time-barred and that Reynolds is not entitled to equitable tolling are

not reasonably debatable. Accordingly, Reynolds has not made “a substantial

showing of the denial of a constitutional right” and 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 district court in its order of dismissal

dated February 6, 2002 and DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge