F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         August 17, 2005
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 MALCOLM PINK,

                  Petitioner-Appellant,                  No. 05-3033
          v.                                             (D. of Kan.)
 DAVID R. McKUNE; ATTORNEY                       (D.C. No. 04-CV-3252-SAC)
 GENERAL OF KANSAS,

                  Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                  *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **




      Defendant-Appellant Malcolm Pink, a state prisoner appearing pro se, filed

a petition for writ of habeas corpus in the district court pursuant to 28 U.S.C.

§ 2254. The district court denied Pink’s writ of habeas corpus as time barred and

also denied him a certificate of appealability (“COA”). Because Pink has not



      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
made a substantial showing of a denial of a constitutional right, 28 U.S.C.

§ 2253(c)(2), we deny COA and dismiss the appeal.

       I. Background

       In 1998, Pink was convicted of three counts of first degree murder in the

district court of Sedgwick County, Kansas. He was sentenced to three concurrent

terms of life imprisonment. His convictions were affirmed by the Kansas

Supreme Court on March 9, 2001. Ninety days later, on June 7, 2001, the time for

filing a petition for certiorari in the United States Supreme Court expired and

Pink’s conviction became final.     See Sup. Ct. R. 13.1 (“Unless otherwise provided

by law, a petition for a writ of certiorari to review a judgment in any case, civil or

criminal, entered by a state court of last resort . . . is timely when it is filed with

the Clerk of this Court within 90 days after entry of the judgment.”).

       For purposes of habeas review, the one-year statute of limitations began to

run at the time Pink’s convictions became “final.”     See 28 U.S.C. § 2244(d)(1)

(“A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from . . . the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such

review[.]”).   See also Federal Rule of Civil Procedure 6(a) (“In computing any

period of time prescribed or allowed . . . by any applicable statute, the day of the


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act . . . from which the designated period of time begins to run shall not be

included. The last day of the period so computed shall be included[.]);   United

States v. Hurst , 

(10th Cir. 2003) (applying the principles of Rule

6(a) to AEDPA’s statute of limitations).

      On March 19, 2002, 285 days into AEDPA’s one-year statute of limitations,

Pink filed a state post-conviction petition under K.S.A. § 60-1507. This action

tolled the one-year limitation. However, after the state district court denied his

motion and the Kansas Court of Appeals affirmed that judgment, Pink failed to

file a timely appeal with the Kansas Supreme Court. The one-year limitation

therefore resumed running following the last day Pink could have filed such an

appeal, or February 8, 2004.   See Gibson v. Klinger, 

, 804 (10th Cir.

2000) (“the limitations period is tolled during the period in which the petitioner

could have sought an appeal under state law.”). At this point Pink had 80 days

remaining in the limitations period, which expired on April 28, 2004. It was not

until July 29, 2004, that Pink appealed to the Kansas Supreme Court, which

denied his claims despite his attorney’s motion to file out of time. On August 10,

2004, approximately three months after the expiration of the one-year limitation,

Pink submitted this petition to the United States District Court for the District of

Kansas.

      II. Legal Issues


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       This court may grant a COA and entertain Pink’s appeal only if he “has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see also Slack v. McDaniel       , 

, 484 (2000). A COA

should issue if the petitioner “shows that reasonable jurists would find it

debatable whether the petition states a valid claim of the denial of the

constitutional right   and that reasonable jurists would find it debatable whether the

district court was correct in its procedural ruling.”   

We deny Pink a

COA.

       A. Statute of Limitations

       Pink first argues the limitations period should have been tolled for 90 days

from the date his convictions were affirmed on direct appeal by the Kansas

Supreme Court (in other words, the time in which he could have filed an appeal to

the United States Supreme Court). We agree, and as the district court explained,

the statute of limitations was indeed tolled during the period in which Pink could

have filed a petition of certiorari with the United States Supreme Court, following

the Kansas Supreme Court’s affirmation of his conviction on direct review.

Pink’s first claim thus has no merit.

       The next issue is whether the limitations period should have been tolled

until Pink’s motions to file out of time were denied by the Kansas Supreme Court.

This court has held that a state appellate court’s decision to grant a petitioner


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leave to appeal out of time from the denial of post-conviction relief does not toll

the limitations period from the expiration of the time to appeal to the filing of a

motion for leave to file a late appeal.    Gibson , 232 F.3d at 804. The same would

be true here, because in neither     Gibson nor this case would a “properly filed

application” be pending. Furthermore, the Supreme Court also recently held that

“a petition filed after a time limit, and which does not fit within any exceptions to

that limit, is no more ‘properly filed’ than a petition filed after a time limit that

permits no exception.”     Pace v. DiGuglielmo , 

, 1812 (2005).

Accordingly, we agree with the district court that a state court’s denial of a

motion for leave to file an appeal out of time does not toll the time period during

which no appeal was pending. Thus, the limitations period in this case resumed

running after Pink’s time to appeal the Kansas Court of Appeals’s decision lapsed

and continued to run until it expired.

       B. Equitable Tolling

       Although Pink did not specifically raise the issue, the district court also

considered the possibility that the statute of limitations should be equitably tolled

in this case. We have explained that such tolling is warranted only in “rare and

exceptional circumstances.”        Gibson , 232 F.3d at 808. We have previously held

that “this equitable remedy is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by extraordinary


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circumstances beyond his control.”     Marsh v. Soares , 

, 1220 (10th

Cir. 2000). Simple “excusable neglect” is not sufficient.    Gibson , 232 F.3d at

808.

       In this appeal, Pink claims his appellate public defender failed to file a

timely appeal of the Kansas Court of Appeals’s denial of his post-conviction

petition under K.S.A. § 60-1507. As discussed above, the last day Pink’s attorney

could have made such a filing in the Kansas Supreme Court was February 8,

2004. Pink alleges that prior to this date, the attorney informed him she would

file an appeal but did not respond to his repeated attempts to discuss the appeal.

In a motion to file out of time with the Kansas Supreme Court, Pink’s appellate

attorney stated that “due to a calendaring error by clerical staff, appellant’s

counsel inadvertently failed to file the petition for review in a timely manner.”

       This claim fails to meet our requirement for equitable tolling. First, the

Supreme Court has clearly held “[t]here is no constitutional right to an attorney in

state post-conviction proceedings.”    Coleman v. Thompson , 

, 752

(1991). Second, this circuit has clearly held that a petitioner’s misunderstanding

of the applicable time lines does not excuse a delay for purposes of equitable

tolling. See Miller v. Marr , 

, 978 (10th Cir. 1998) (petitioner’s lack

of awareness of limitation period was insufficient basis for equitable tolling).




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       Third, other circuits have held and we agree that attorney error is generally

not a basis for equitable tolling.   See, e.g., Merritt v. Blaine , 

, 169

(3d Cir. 2003) (applying general rule that “attorney error, miscalculation,

inadequate research, or other mistakes have not been found to rise to the

extraordinary circumstances required for equitable tolling”) (internal citations

omitted); Rouse v. Lee , 

, 248 (4th Cir. 2003) (“a mistake by a party’s

counsel in interpreting a statute of limitations does not present the extraordinary

circumstance beyond the party's control where equity should step in to give the

party the benefit of his erroneous understanding”) (internal citations omitted);

United States v. Martin , 

, 1093 (8th Cir. 2005) (“Ineffective

assistance of counsel, where it is due to an attorney's negligence or mistake, has

not generally been considered an extraordinary circumstance [with respect to

equitable tolling]”).

       Finally, as a general matter, attorney error during § 2254 habeas

proceedings is not itself grounds for equitable relief.   See 28 U.S.C. § 2254(i)

(“The ineffectiveness or incompetence of counsel during Federal or State

collateral post-conviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254.”).




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      In sum, while we sympathize with Pink’s plight, the case law of this circuit

and others show that his attorney’s neglect does not rise to the level of

“extraordinary” circumstances.

      Pink’s final claim is that his “actual innocence” warrants tolling in this

case. We agree with the district court that this allegation has no evidentiary basis.

      Accordingly, we DENY COA and DISMISS the appeal.

                                       Entered for the Court

                                       Timothy M. Tymkovich
                                       Circuit Judge




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