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TENTH CIRCUIT
No. 05-6083
(D.C. No. CIV-04-1453-F)
(W.D. Okla.)
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, OBRIEN, and TYMKOVICH, Circuit Judges.
Larry Joe Parnell, Jr., an inmate appearing pro se, seeks a certificate of
appealability (COA) to appeal from the district courts denial of his habeas
petition filed pursuant to 28 U.S.C. 2254. On appeal, Mr. Parnell claims that he
received constitutionally defective trial and appellate counsel and was denied due
process and equal protection in state post-conviction proceedings thereby
warranting consideration of his federal claims. He contends that the district court
wrongly dismissed his petition as untimely. Because Mr. Parnell has not made a
substantial showing of the denial of a constitutional right, 28 U.S.C.
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA
F.3d 1135, 1142-43 (10th Cir. 2001). The magistrate judge also rejected
equitable tolling. Mr. Parnell objected to the report and recommendation, which
the district court adopted, dismissing the petition as time-barred.
Where the district dismisses a petition on procedural grounds, a COA
requires the inmate to demonstrate that it is reasonably debatable whether (1) the
petition states a valid claim of the denial of a constitutional right, and (2) the
district courts procedural ruling is correct. Slack, 529 U.S. at 484; see also
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A petitioners failure to know
about the one-year limitation period does not constitute the rare and exceptional
circumstances where equitable tolling might be appropriate. See Burger v. Scott,
317 F.3d 1133, 1141-44 (10th Cir. 2003). The district courts procedural ruling is
not reasonably debatable.
We DENY Mr. Parnells application for a COA and DISMISS the appeal.