*

 This order is not binding precedent, except under the doctrines of law of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

July 1, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREGORY LYNN GALES, 

Petitioner-Appellant,

v.

SAM CLINE, Warden; STEVEN SIX,

Attorney General of the State of

Kansas,

Respondents-Appellees.

No. 08-3124

(Case No. 07-CV-03282-SAC)

(D. Kan.)

 

ORDER*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

Petitioner, a state prisoner proceeding pro se, seeks to appeal the district

court’s dismissal of his § 2254 habeas petition as time barred. 

In September 2001, Petitioner was convicted of murder and arson by a

Kansas jury. His conviction and sentence were affirmed on direct appeal, and

both the Kansas and United States Supreme Courts denied review. Petitioner then

filed his first federal § 2254 habeas petition. On September 30, 2004, the district

court dismissed the petition without prejudice for failure to exhaust, noting that
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the issues raised in the petition had not been raised on direct appeal and that

Petitioner had not sought state collateral review pursuant to Kan. Stat. Ann. § 60-

1507. The district court advised Petitioner that the one-year limitations period for

federal habeas review of his conviction began running on June 1, 2004, and that

his filing of this federal habeas action did not toll the running of the limitations

period. The court stated: “Accordingly, if petitioner elects to appeal the order

and judgment by this court entered this date herein, the one year limitation period

in 28 U.S.C. [§] 2244(d)(1) will continue to run while that appeal is pending in a

federal circuit court of appeals.” Order at 3, Gales v. Bruce, No. 04-3300-SAC

(D. Kan. Sept. 30, 2004). Despite this warning, Petitioner chose to seek a

certificate of appealability and wait for a decision from this court before seeking

state post-conviction relief. We denied his request for a certificate of

appealability on June 21, 2005, Gales v. Bruce, 136 F. App’x 179 (10th Cir.

2005), and Petitioner began the process of seeking state post-conviction relief in

January 2006. After he exhausted his state court remedies, he filed the instant §

2254 petition in 2007.

The district court found that the instant petition was time-barred by the

statute of limitations. The period for Petitioner to seek habeas review of his state

conviction expired in June 2005. He did not file a state petition within the

limitations period, and his federal filing could not statutorily toll the limitations

period. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). The district court
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rejected Petitioner’s arguments that the court had erred in dismissing Petitioner’s

earlier habeas petition and that the court should waive the limitations period

because the state court had entertained his state post-conviction action without a

time bar. The district court concluded that these assertions lacked legal merit and

provided no basis for excusing the untimely filing of the instant habeas petition.

Petitioner must obtain a certificate of appealability to challenge the district

court’s denial of his § 2254 habeas petition. See Montez v. McKinna, 208 F.3d

862, 866-67 (10th Cir. 2000). When the district court denies a habeas petition on

procedural grounds, we will issue a certificate of appealability only if the prisoner

shows that jurists of reason would find it debatable both “whether the petition

states a valid claim of the denial of a constitutional right” and “whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). 

In his application for a certificate of appealability, Petitioner essentially

argues that this court is at fault for the expiration of the limitations period

because we did not rule on his earlier petition until after the limitations period

had run. We note, however, that Petitioner was specifically warned that the

limitations period would continue to run while his appeal was pending, and

neither this court nor the district court prevented Petitioner in any way from filing

for state post-conviction relief before the expiration of the limitations period. We

see no basis for statutory or equitable tolling in any of the materials presented by
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Petitioner to the district court and this court.

Having carefully reviewed Petitioner’s brief and application for a

certificate of appealability, the district court’s disposition, and the record on

appeal, we conclude that reasonable jurists would not debate the correctness of

the district court’s procedural ruling. Accordingly, for substantially the reasons

set forth by the district court, we DENY Petitioner’s request for a certificate of

appealability and DISMISS the appeal. 

Entered for the Court

Monroe G. McKay

Circuit Judge