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

### APR 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
NOE R. GAMEZ, Petitioner-Appellant,

v. W.A. DREW EDMONDSON and RON WARD, Respondents-Appellees. No. 02-6299 (D.C. No. 02-CV-589-L) W. District of Oklahoma

ORDER

KELLY , BRISCOE , and LUCERO , Circuit Judges.

Noe Gamez, an Oklahoma state prisoner proceeding pr o se, seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge the district court’s dismissal of his federal habea s petition as untimely. For substantially the same reasons set forth by the mag istrate’s Report and Recommendation, adopted by the district court in it s Order of September 11, 2002, we deny a COA and dismiss the matter. Gamez was convicted of unlawful distribution of a c ontrolled dangerous substance, and the Oklahoma Court of Criminal Appea ls (“OCCA”) affirmed his2

conviction on April 2, 1998. Gamez filed his firstapplication for state postconviction relief on January 21, 1999. OCCA affirm ed the denial of this petition on April 27, 1999. Thereafter, Gamez filed his fir st petition for federal habeas relief on October 4, 1999, which was dismissed with out prejudice on May 1, 2001, for failure to exhaust each claim in state co urt. In light of this ruling, Gamez filed a second application for state post-con viction relief on September 28, 2001. Finally, Gamez filed the instant § 2254 peti tion on May 1, 2002, which the district court dismissed as time-barred. Gamez may not appeal the denial of habeas relief un der § 2254 unless a COA is granted. 28 U.S.C. § 2253(c)(1)(A). This c ourt may issue a COA only if Gamez “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Because the district court dismissed Gamez’s petition on procedural grounds, namely untimeliness, Gamez mustdemonstrate “that jurists of reason would find it debatable whether the petit ion states a valid claim of the denial of a constitutional right and that jurists o f reason would find it debatable whether the district court was correct in its proce dural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted). Pursuant to the Antiterrorism and Effective Death P enalty Act of 1996 (“AEDPA”), prisoners generally have one year from t he date on which their convictions become final to petition for federal habeas corpus relief. 28 U.S.C.3

§ 2244(d)(1). A conviction becomes final “by the c onclusion of direct review or the expiration of the time for seeking such review. ” § 2244(d)(1)(A). The oneyear period of limitation is tolled or suspended du ring the pendency of a state application for post-conviction relief properly fil ed during the limitations period. § 2244(d)(2). Moreover, the one-year period is subject to equitable tolling in extraordinary circumstances. Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). For purposes of § 2244(d)(1)(A), Gamez’s conviction became final on July 1, 1998, ninety days after OCCA affirmed his convictio n on direct appeal. See Locke v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001) ( holding that a conviction becomes final for habeas purposes when the ninety-d ay period for filing a petition for a writ of certiorari to the United States Supreme Court has expired). Absent tolling, Gamez’s petition had to be filed by July 1, 1999, in order to be timely under AEDPA. As thoroughly explained by the magistrate in her Re port and Recommendation, adopted by the district court, Game z filed his petition almost three years outside the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1)(A) without a showing of entitlement to either statutory tolling or equitable tolling. We have carefully reviewed peti tioner’s brief, the district court’s order, and the material portions of the rec ord, including the magistrate judge’s Report and Recommendation, and conclude that Gamez has failed to raise4

a debatable issue as to whether his petition was im properly dismissed as timebarred. Accordingly, Gamez’s application for a COA is DENIED . His motion to proceed in forma pauperis before this court is GRANTED , and the matter is DISMISSED

.

ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge