UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

VICTOR V. ROSE, Petitioner - Appellant,

v. MIKE MULLIN, Respondent - Appellee. No. 11-7038 (E.D. Okla.) (D.C. No. 6:10-CV -00131-JHP-KEW)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY AND DISMISSING APPEAL

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.

Victor Rose, a state pr isoner proceed ing pro se, 1 wants to appeal from the district

court’s denial of his 28 U.S. C. § 2254 habeas petition ch allenging the validity of his guilty plea and the effec tiveness of his counsel. 2 The district cour t concluded his petition was untimely and there was no basis for equita ble tolling. Because that decision is not even debatably incorrect we deny his requ est for a Certificate of Appealability (COA). Rose pled guilty to second -degree burglary on June 13, 2007, after a former conviction of a felony and was sentenced to fifteen years imprisonment on June 19, 2007.

1 We liberally construe Rose’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). 2 Our jurisdiction derives from 28 U.S.C. §§ 1291 and 2253(a). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - [18] The next day, he filed a motion to wit hdraw the plea. The Oklahoma district court denied the motion on August 2, 2007. A little more than a year later, on August 27, 2008, the Oklahoma Court of Criminal Appeals (OCCA) affirm ed. Because Rose did not petition for a writ of certeriori from the Unite d States Supreme Court, his conviction became final 90 days later, on November 25, 2008. See Fleming v. Evans , 481 F.3d 1249, 1257-58 (10th Cir. 2007). Therefore, his deadline for filing a federal petition for a writ of habeas corpus was November 25, 2009. See 28 U.S.C. § 2244(d)(1)(A). On March 24, 2009, before the one-year limitations period expired, Rose filed an application for state post-convic tion relief in Oklahoma district court. The court denied the application on April 1, 2009, and th e OCCA affirmed on May 28, 2009. Rose filed this petition with the United States District Court for the Eastern District of Oklahoma on April 14, 2010. The district court de termined the 66 days that his post-conviction proceedings were pending extended his deadline from November, 2009 to January 30, 2010. An d because Rose filed his habe as petition on April 14, 2010, it was untimely. It also determined Rose failed to show “tha t some extraordinary circumstance stood in his way” which would warrant equitable tolling of the limitations period. Yang v. Archuleta , 525 F.3d 925, 928 (10th Cir. 2008) (quotations omitted).

The district court denied Rose ’s timely request for a COA. 3 We have considered his request for a COA submitted to this Court. Fed. R. App. P. 22(b)(2) (“A request addressed to the court of appeals may be cons idered by a circuit judge or judges, as the

3 Inexplicably, the district c ourt permitted Rose to proceed in forma pauperis on appeal.- 3 - court prescribes.”). Rose claims the district court erred because “there [was] no one year [lapse] of time” where an order or final judgment was not on appeal. But he misunderstands the one-year time limit; it is cumulative – the clock does not reset with each new pleading. See Rowe v. LeMaster , 225 F.3d 1173, 1175 (1 0th Cir. 2000) (“[T]he limitations period is tolled only while the ‘State post-conviction or othe r collateral review

. . . is pending.’ § 2244(d)(2)”). A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showin g, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matte r, agree that) the petition should

have been resolved in a different manner or that the i ssues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whet her an applicant has sa tisfied this burden, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Miller-El , 537 U.S. at 338. Where the district court dismisses a pe tition on procedural grounds, a COA requires the inmate to

demonstrate that it is reasonabl y debatable whether (1) the pe tition states a valid claim of the denial of a constitutional right, and (2) the district court’s procedural ruling is correct. Slack, 529 U.S. at 483–84.- 4 - As no jurist of reason could reasonably debate the correctness of the district court’s procedural ruling, we DENY the re quest for a COA and DISMISS this matter. Entered by the Court: Terrence L. O’Brien United States Circuit Judge