1 McCarley’s petition was filed after April 24, 1996 , the effective date of

the Antiterrorism and Effective Death Penalty Act ( “AEDPA”); as a result, AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). AEDPA conditions a peti tioner’s right to appeal a denial of habeas relief under § 2254 upon a grant o f a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the ap plicant has made a substantial showing of the denial of a constitution al right.” § 2253(c)(2). This requires McCarley to demonstrate “that reasonable j urists could debate whether (or, for that matter, agree that) the petition shou ld have been resolved in a (continued...) 

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

### July 15, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEFFRY A. MCCARLEY, Petitioner - Appellant,

v. RON WARD, Warden, Respondent - Appellee. Nos. 04-7114 04-7134 (D.C. No. CIV-03-574-P) (E.D. Okla.)

ORDER DENYING A CERTIFICATE OF

APPEALABILITY

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

State prisoner Jeffrey A. McCarley, pro se, request s a certificate of appealability (“COA”) to appeal the denial of his 2 8 U.S.C. § 2254 habeas corpus petition. 1 For substantially the same reasons set forth in t he district court order,1 (...continued)

different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDani el , 529 U.S. 473, 484 (2000) (quotations omitted). Because the district court d enied McCarley a COA, he may not appeal the district court’s decision absent a g rant of a COA by this court.

2 There are two case numbers on appeal because McCar ley filed a second notice after the district court denied his request for a COA. Consequently these appeals constitute a single matter for all practica l purposes. 2 we DENY McCarley’s requests for a COA and DISMISS

. 2 McCarley was convicted of Assault and Battery with a Deadly Weapon with Intent to Kill, and was sentenced to a total of fif ty years’ imprisonment. On direct appeal, the Oklahoma Court of Criminal Appea ls (“OCCA”) affirmed the conviction and sentence on the merits on December 3 , 1996 , and the 90-day period for appeal to the U.S. Supreme Court expired on March 3, 1997. Thus, the one-year AEDPA statute of limitations ran on March 3, 1998. McCarley filed a petition for a writ of habeas corpus with the U.S. District Court on October 20, 2003. AEDPA provides for a one-year statute of lim itations on applications for writs of habeas corpus by persons in custody pursuant to the judgment of a State court. § 2244(d). The district court dismissed McCarley’s habeas peti tion on the basis of the AEDPA statute of limitations. Because the districtcourt dismissed on a procedural ground prior to development of either th e factual or legal basis for his underlying claims, our assessment of the merits of his claims is necessarily3

limited. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that juris ts of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whe ther the district court was correct in its procedural ruling.” Slack , 529 U.S. at 484 (emphasis added) . McCarley has not shown that jurists of reason wouldfind it debatable whether the district court was correct in its procedural ruling

. Because McCarley does not, nor could he, contest th at the AEDPA statute of limitations ran before he filed his habeas petit ion in federal court, he instead argues that we should deem the statute of limitatio ns to have equitably tolled. In support of this proposition, he argues that he suff ers from brain damage and that he had inadequate law library facilities. We agree with the district court that he has not demonstrated the “exceptional circumstances ,” Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264, 1268 (10th Cir. 1996), and diligentpursuit of his remedies, see Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), required for equitable tolling. For the reasons set forth above, McCarley’s requestfor a COA is DENIED4

and the appeal is DISMISSED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge