FILED

United States Court of Appeals

Tenth Circuit

April 26, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN J. MERRITT,

Petitioner - Appellant,

v.

JANE STANDIFIRD,

Respondent - Appellee.

No. 09-6300

(D.C. No. 09-CV-01110-HE)

(W.D. Okla.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Petitioner-Appellant Kevin J. Merritt, a state inmate appearing pro se, seeks

a certificate of appealability (“COA”) allowing him to appeal the denial of his

petition for a writ of habeas corpus, 28 U.S.C. § 2254. On appeal, Mr. Merritt

argues the merits of his habeas petition. Because Mr. Merritt has failed to

demonstrate that it is reasonably debatable whether the district court’s procedural

ruling dismissing his petition as untimely is correct, Slack v. McDaniel, 529 U.S.

473, 483-84 (2000), we deny a COA and dismiss the appeal.

The district court adopted the magistrate judge’s findings and

recommended disposition that Mr. Merritt’s petition was untimely under 28

U.S.C. § 2244(d)(1)(A). R. 32-41; 58-59. The district court also independently
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determined that equitable tolling did not apply. R. 58-59. A COA is a

jurisdictional prerequisite to our review, Miller-El v. Cockrell, 537 U.S. 322, 327

(2003), and we may issue one “only if the applicant has made a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). 

Under 28 U.S.C. § 2244(d)(1)(A), Mr. Merritt had one year from the date

on which direct review of his conviction in state court ended to file his petition. 

He did not seek direct review of his sentence, and the period in which he could

have sought such review ended on February 27, 2005 (ten days after the entry of

his guilty plea by the state court on February 17, 2005). See Okla. Stat. tit. 22 §

1051; Okla. Crim. App. R. 4.2 (indicating that, when a defendant pleads guilty in

Oklahoma state court and does not attempt to withdraw the plea, the sentence

becomes final after the expiration of the ten-day period in which a defendant can

seek to withdraw a plea under Oklahoma law). Absent tolling, the one-year

limitations period therefore began on February 28, 2005, and expired on February

28, 2006. Mr. Merritt’s May 14, 2008, state application for post-conviction relief,

filed long after the one-year limitations period had expired, did not toll the

limitations period. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)

(“Only state petitions for post-conviction relief filed within the one year allowed

by AEDPA will toll the statute of limitations.”). He did not file his federal

habeas petition until October 8, 2009. R. 4-31.

We see no basis for tolling that could render this petition timely. As noted
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above, Mr. Merritt did not file his state application until after the limitations

period had expired, so statutory tolling is inapplicable. For equitable tolling to

apply, Mr. Merritt must show (1) extraordinary circumstances beyond his control,

and (2) diligence in pursuing his claims. Lawrence v. Florida, 549 U.S. 327, 336

(2007). Mr. Merritt argues that he is entitled to equitable tolling for his over

three-year delay in filing because he did not have the legal knowledge to file his

petition until October 2009 and he had been “exercising due diligence by

absorbing as much legal knowledge as possible.” R. 49-53. “[I]gnorance of the

law, even for an incarcerated pro se petitioner, generally does not excuse prompt

filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation and

quotation marks omitted). Because there is no basis for statutory or equitable

tolling, the conclusion that Mr. Merritt’s petition is time-barred is not reasonably

debatable. 

We DENY IFP status, DENY the motion for a COA, and DISMISS the

appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge