F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRY FRANCIS DURDEN,
Petitioner-Appellant,
No. 04-7085
v. (Eastern District of Oklahoma)
(D.C. No. 03-CV-600-S)
MICHAEL ADDISON, Warden,
Respondent-Appellee.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
Proceeding pro se, state prisoner Larry Francis Durden seeks a certificate
of appealability (“COA”) so he can appeal the district court’s denial of the habeas
petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A)
(providing that no appeal may be taken from a final order disposing of a § 2254
petition unless the petitioner first obtains a COA). In November 2001, Durden
entered a guilty plea to a charge of lewd molestation. Durden did not attempt to
withdraw his guilty plea or otherwise directly appeal his conviction. He did,
however, file a state post-conviction petition on March 22, 2004, seeking an
appeal out of time. The state petition was denied, as was Durden’s appeal.
Durden filed the instant § 2254 petition on October 29, 2003. In the
petition, Durden asserted claims against the parent of the victim, a claim that his
counsel provided him with constitutionally ineffective assistance, a claim that his
guilty plea was not made knowingly and voluntarily, and a claim that records
from a prior California conviction are either erroneous or have been altered.
Respondent moved to dismiss the § 2254 as untimely. The district court granted
Respondent’s motion, concluding that Durden’s petition was filed outside the
one-year limitations period and that Durden was not entitled to any tolling of the
limitations period.
In his appellate brief and application for a COA, Durden does not argue
that his § 2254 petition was filed within the one-year limitations period. 28
U.S.C. § 2244(d)(1)(A). Instead, he argues that the one-year limitations period is
unconstitutional. After reviewing the record, we reject Durden’s argument that
applying the limitations period in this case rendered the habeas remedy inadequate
or ineffective. See Miller v. Marr, 141 F.3 976, 978 (10th Cir. 1998).
To be entitled to a COA, Durden must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
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whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct). Our review of the record
demonstrates that the district court’s dismissal of Durden’s § 2254 petition as
untimely is not deserving of further proceedings or subject to a different
resolution on appeal. Accordingly, we deny Durden’s request for a COA and
dismiss this appeal. All outstanding motions are dismissed as moot.
Entered for the Court
PATRICK FISHER, Clerk of Court
By
Deputy Clerk
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