FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 2, 2008
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 JOSHUA STUMP,

              Petitioner-Appellant,                      No. 07-6109
       v.                                               (W.D. Okla.)

 STATE OF OKLAHOMA;                               (D.C. No. CIV-05-397-R)
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS; LENORA JORDAN,
 Warden,

              Respondents-Appellees.



                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before HENRY, Chief Circuit Judge, TYMKOVICH and HOLMES, Circuit
Judges.



      Joshua Stump, an Oklahoma state prisoner represented by counsel, seeks a

certificate of appealability (“COA”) to appeal the district court’s order dismissing

as time-barred his 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. For

substantially the same reasons set forth by the magistrate judge in her

well-reasoned report and recommendation, we agree that Mr. Stump’s petition is

time-barred, deny his application for a COA, and dismiss this matter.
                                 I. BACKGROUND

      On April 25, 1996, Mr. Stump pleaded guilty to one count of second-degree

murder in the District Court of Lincoln County, Oklahoma. The court sentenced

him to seventy-five years’ imprisonment.

      Mr. Stump did not file a motion to withdraw his guilty plea, and he did not

file a direct appeal of his conviction or sentence. However, on February 13,

2004, Mr. Stump filed an application for post-conviction relief in the Lincoln

County District Court. That court denied the post-conviction motion on March 1,

2004. Mr. Stump then filed an appeal of that decision in the Oklahoma Court of

Criminal Appeals (OCCA). On April 26, 2004, the OCCA affirmed the denial of

post-conviction relief.

      Subsequently, on April 8, 2005, Mr. Stump filed the instant 28 U.S.C. §

2254 petition for a writ of habeas corpus in the federal district court. Mr. Stump

alleged that his April 1996 guilty plea was not knowing and voluntary because it

was based on his counsel’s “unfulfilled assurances.” Aplt’s App. at 8 (Report

and Recommendation, filed Feb. 28, 2007) (quoting Petition). In particular, Mr.

Stump asserted that his counsel had told him that if he pleaded guilty, “he would

be out of prison in seven (7) to nine (9) years.” 

recommendation of a magistrate judge, the district court

dismissed Mr. Stump’s petition as time-barred. The court held that Mr. Stump


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had not filed the petition within the one-year period set forth in 28 U.S.C. §

2244(d)(1)(A) and that neither statutory nor equitable tolling was warranted. Mr.

Stump appealed that decision to this court, and, on July 6, 2006, we remanded the

case to the district court and directed it to address the following question:

“Whether a petitioner, alleging that he received mistaken advice from his counsel

regarding parole eligibility, exercises due diligence under [28 U.S.C.] §

2244(d)(1)(D) if he does not file a habeas petition until the asserted parole release

date.” Aplt’s App. at 9 (quoting Order filed July 6, 2006) (alterations in Report

and Recommendation).

      On remand, the district court referred the case to a magistrate judge, who

again concluded that Mr. Stump’s petition was time-barred. The magistrate judge

reasoned as follows: Mr. Stump pleaded guilty and was sentenced on April 25,

1996, and he did not attempt to withdraw his guilty plea within the ten-day period

provided by Oklahoma law. See Aplt’s App. at 11 (Report and Recommendation,

citing Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals).

Therefore, his conviction became final on May 6, 1996. See 

n.3 (“The

tenth calendar day fell on May 5, 1996, which was a Sunday. Thus, Petitioner’s

convictions became final on the following business day, which was Monday,

May 6, 1996. See O KLA . S TAT . tit. 12 § 2006(A)”). However, Mr. Stump did not

file his habeas petition until April 8, 2005, nearly eight years beyond the




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expiration of the one-year limitation period set forth in 28 U.S.C. §

2244(d)(1)(A).

         The magistrate judge then addressed the question we posed in our order of

remand. She observed that the respondents had produced documents showing

that, in 1996, corrections officials scheduled Mr. Stump’s initial parole hearing

date for March 2004. If Mr. Stump had been released in March 2004, the

promise allegedly made by his attorney at the time of the guilty plea would have

been fulfilled: Mr. Stump would have served approximately eight years in prison,

a period within his attorney’s seven to nine year estimate.

         However, the magistrate judge continued, the respondents produced

additional documents that notified Mr. Stump in 1998 and 1999 “that his parole

eligibility had been changed to a later date–February 2007.” Aplt’s App. at

12-13.

               [U]nder the circumstances of this case, [Mr. Stump] was
               reasonably charged with the knowledge that[,] at least by
               May 19, 1999, that he would not be considered for parole
               much less released on parole within seven to nine years of
               his 1996 conviction. Once [Mr. Stump] was notified in
               May of 1999 that his initial parole hearing was set for
               February of 2007, he surely knew he would not be released
               on parole in 2005 as promised by trial counsel. [Mr.
               Stump] offers no reasonable explanation for waiting
               almost five years to begin raising his claim.

                      Therefore, . . . [Mr. Stump], acting with reasonable
               diligence, either knew, or could have discovered through
               the exercise of due diligence, the facts underlying his
               federal habeas claim on or before May 19, 1999, not some


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               later date when [Mr. Stump] may have discovered a legal
               argument concerning his ineffective assistance of counsel
               claim.

Aplt’s App. at 14 (footnotes omitted).

      The magistrate judge further concluded that neither statutory nor equitable

tolling of the limitations period was warranted. The district court again adopted

the report and recommendation and concluded that Mr. Stump’s petition was

time-barred.

                                  II. DISCUSSION

      In order to obtain a COA, Mr. Stump must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 

, 336 (2003) (internal

quotation marks omitted). “[A] claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case has received

full consideration, that [the] petitioner will not prevail.” 

                                A. Limitations Period

      Here, as the magistrate judge observed, Mr. Stump’s petition is governed

by the limitations period set forth in 28 U.S.C. § 2244(d)(1), which provides:




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             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 latest of –

             (A) the date on which the judgment became final by the
             conclusion of direct review or the expiration of the time
             for seeking such review;
             (B) the date on which the impediment to filing an
             application created by State action in violation of the
             Constitution or laws of the United States is removed, if the
             applicant was prevented from filing by such State action;
             (C) the date on which the constitutional right asserted was
             initially recognized by the Supreme Court, if the right has
             been newly recognized by the Supreme Court and made
             retroactively applicable to cases on collateral review; or
             (D) the date on which the factual predicate of the claim or
             claims presented could have been discovered through the
             exercise of due diligence.

      Mr. Stump contends that his habeas petition is timely under §

2244(d)(1)(D). However, like the magistrate judge, we are not persuaded that

it was only after the end of the seven-to-nine year period of incarceration that the

factual predicate of Mr. Stump’s ineffective assistance of counsel claim “could

have been discovered through the exercise of due diligence.” 

magistrate judge reasoned, the documents offered by the respondents

established that corrections officials informed Mr. Stump no later than May 19,

1999, that he would not be considered for parole until February 2007 – “almost

two years longer than counsel’s seven to nine year time frame.” Aplt’s App. at

14. Mr. Stump has offered no colorable argument why his claim did not accrue

when he was notified of the February 2007 parole date. He does not contend that


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he did not understand the documents, that they were ambiguous, or that he could

not have reasonably determined from them that he would be incarcerated for a

longer period of time than promised by his trial counsel. Thus, the factual

predicate of Mr. Stump’s claim was discoverable no later than May 19, 1999,

when he received the notice of the March 2007 parole date. Cf. Okla. Federated

Gold & Numismatics, Inc. v. Blodgett, 

, 139-40 (10th Cir. 1994)

(noting that a pro se litigant could not convincingly maintain that he was unaware

of the need to comply with court orders and the consequences of his failure to do

so). Mr. Stump had one year from May 19, 1999, to file his federal habeas

petition. However, he did not file this case until April 8, 2005, well after the

limitations period expired.

                                B. Equitable Tolling

      In his appellate brief, Mr. Stump’s counsel argues that equitable tolling of

the limitations period is warranted. He asserts that “[Mr. Stump] is entitled to

equitable tolling because even though he may have been given information of the

change in his parole date and even though he may have signed his adjustment

reviews, etc., he was still counting on the fact that what his trial attorney told him

was going to happen.” Aplt’s Br. at 14-15.

      Section 2244’s one-year statute of limitations is subject to equitable tolling

only in rare and exceptional circumstances. Gibson v. Klinger, 

, 808

(10th Cir. 2000). “Equitable tolling would be appropriate, for example, when a


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prisoner is actually innocent, when an adversary’s conduct – or other

uncontrollable circumstances – prevents a prisoner from timely filing, or when a

prisoner actively pursues judicial remedies but files a defective pleading during

the statutory period.” 

omitted). “Simple [e]xcusable

neglect is not sufficient.” 

petitioner must diligently pursue

his federal habeas claims.” 

Stump’s contention that he continued to rely on the assurances of

his counsel does not meet this high standard. We therefore conclude that he is not

entitled to equitable tolling of the limitations period.

                                  III. CONCLUSION

      We therefore DENY Mr. Stump’s application for a COA and DISMISS this

matter.

                                        Entered for the Court,


                                        Robert H. Henry
                                        Chief Circuit Judge




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