FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 8, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
STEVEN ORLANDO TITSWORTH,
Petitioner - Appellant,
No. 08-7057
v. (D.C. No. 08-CV-00129-RAW-KEW)
(E.D. Okla.)
MIKE MULLIN, Warden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Steven Orlando Titsworth, a state inmate appearing pro se, seeks a
certificate of appealability (COA) allowing him to appeal from the district court’s
denial of his habeas petition pursuant to 28 U.S.C. § 2254. Because the district
court’s conclusion that Mr. Titsworth’s petition was untimely is not reasonably
debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and
dismiss the appeal.
On February 26, 2003, Mr. Titsworth pleaded guilty to petit larceny and
received a one-year suspended sentence. Because he did not appeal, his
conviction would become final ten days thereafter, on March 8, 2003. That date
was a Saturday, so the conviction became final on March 10, 2003. See Okla. Ct.
Crim. App. R. 1.4, 1.5, 4.2(A); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.
2001). Mr. Titsworth then had one year to file his federal habeas corpus petition
under § 2244(d)(1)(A). This federal petition was filed on March 28, 2008. On
May 5, 2008, the State moved to dismiss the federal petition, and on May 29,
2008, the district court granted the motion on the merits and noted that Mr.
Titsworth had not responded within the time allowed. 1 R. Doc. 9. Thereafter,
Mr. Titsworth filed an objection to the motion to dismiss which was denied. 1 R.
Docs. 11 and 18.
Mr. Titsworth argues that the one-year limitation period should run from
February 28, 2008, after the conclusion of various state post-conviction
proceedings, the earliest of which was a motion to withdraw his guilty plea filed
January 25, 2007. He also contends that he became aware of the factual predicate
of his claims on November 15, 2006, when he began researching and determined
that his counsel provided incorrect information about his sentence and the district
court did not properly advise him. See 28 U.S.C. § 2244(d)(1)(D). Neither
ground makes the district court’s order reasonably debatable. The state post-
conviction proceedings initiated after the one-year limitation period of §
2244(d)(1)(A) do not toll. See Fisher, 262 F.3d at 1142-43. Moreover, the
Oklahoma Court of Criminal Appeals held that Mr. Titsworth should have been
aware of the sentencing problem on March 5, 2004, a factual determination that is
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presumed correct. 28 U.S.C. § 2254(e)(1). Thus, Mr. Titsworth’s federal petition
was filed well after the one-year period commencing on March 5, 2004.
Accordingly, we DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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