* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAR 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY BOTTOMS, Petitioner-Appellant,

v. No. 00-6405 JAMES L. SAFFLE, Warden; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. (D.C. No. 00-CV-1392-L) (W.D.Okla.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE, 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. Petitioner Gary Bottoms, a state inmate appearing p ro se, seeks a certificate of appealability to appeal the district court’s dis missal of his 28 U.S.C. § 22542

habeas petition as untimely. We deny a certificate of appealability and dismiss the appeal. Bottoms was convicted of second degree murder in st ate court on March 19, 1996. His direct appeal from his conviction an d sentence was affirmed on April 15, 1997, and became final on July 14, 1997, after expiration of the ninetyday period for seeking certiorari with the Supreme Court. See Habteselassie v. Novak , 209 F.3d 1208, 1209 (10th Cir. 2000). His applic ation for postconviction relief in state court was denied on Apri l 27, 2000, and this denial was affirmed on appeal by the Oklahoma Court of Crimina l Appeals on July 11, 2000. Bottoms mailed his habeas petition to the district court on August 8, 2000, and it was filed on August 15, 2000. He filed an amended habeas petition on August 31, 2000. The magistrate judge ordered Bott oms to show cause why his petition should not be summarily dismissed based on expiration of the statute of limitations in 28 U.S.C. § 2244(d), which in this c ase would have expired on July 13, 1998. After considering Bottoms’ response to the order to show cause, the magistrate recommended dismissal of the petition as untimely because it was filed after expiration of the statute of limitation s and the record did not support tolling of the limitations period. Bottoms filed o bjections to the magistrate’s report. The district court adopted the magistrate’ s report and dismissed the petition as untimely.3

Before a certificate of appealability can issue, a petitioner must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). When, as in this case, the district court denies a habeas petition on proc edural grounds without reaching the prisoner’s underlying constitu tional 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 andthat jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000) (emphasis added). B ottoms argues that jurists of reason would find it debatab le whether the district court was correct in its procedural ruling. We review de nov o the legal basis for the district court’s action. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied , 528 U.S. 1120 (2000). After careful review of the entire record, we agree with the magistrate’s comprehensive and well-reasoned assessment that Bottoms’ habeas petition was untimely and that no tolling was warranted. Absentstatutory or equitable tolling, under Section 2244(d) Bottoms’ habeas petition was required to be filed on or before July 13, 1998. We DENY a certificate of appealability and DISMISS this appeal. We DENY the request to proceed in forma pauperis on ap peal. The mandate shall4

issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge