FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                        January 3, 2011
                                    TENTH CIRCUIT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court


 SIDNEY COOLEY,

           Petitioner-Appellant,

 v.                                                           No. 10-1485
                                                    (D.C. No. 1:10-CV-01834-ZLW)
 ANGEL MEDINA, Warden, L.C.F.;                                 (D. Colo.)
 THE ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, McKAY, and LUCERO, Circuit Judges.



       Sidney Cooley, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to contest the district court’s determination that his 28 U.S.C.

§ 2254 habeas petition was time-barred by the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d)(1). We deny his request for a COA.

                                             I

       Cooley pled guilty to six counts of a forty-eight count indictment relating to a

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
series of burglaries. His conviction and sentence were affirmed by the Colorado Court of

Appeals on March 29, 2007, and his petition for review was denied by the Colorado

Supreme Court on August 6, 2007. Cooley did not petition for certiorari to the United

States Supreme Court.

       In October 2007, Cooley filed a motion for reconsideration of his sentence

pursuant to Colo. R. Crim. P. 35(b). The motion was denied on February 12, 2008.

Pursuant to Colo. App. R. 4(b)(1), Cooley had forty-five days to appeal this order, but he

did not do so. Cooley contends he did not receive notice of the trial court’s ruling on his

motion until August 2008 and that he believed AEDPA’s clock began to run from the

date he discovered that his motion failed.

       On May 26, 2009, Cooley began collateral proceedings in the Colorado courts

pursuant to Colo. R. Crim. P. 35(c). His claims were rejected by the trial court and

denied by the Colorado Court of Appeals. Cooley did not seek certiorari with the

Colorado Supreme Court. He filed his federal habeas petition with the district court on

July 26, 2010.

       The district court concluded that Cooley’s petition was untimely. Cooley seeks a

COA based on his claim that he is entitled to equitable tolling because of his belief that

the statute of limitations did not begin to run until he learned of the failure of his Rule

35(b) motion.

                                              II

       In cases in which the district court dismisses a habeas petition on procedural

grounds, we may grant a COA only if “jurists of reason would find it debatable whether

                                              -2-
the petition states a valid claim of the denial of a constitutional right and . . . jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 

, 484 (2000). Our review of the district court’s

interpretation of AEDPA’s timeliness requirement is de novo. See e.g., Gibson v.

Klinger, 

, 803 (10th Cir. 2000). Because Cooley proceeds pro se, we

liberally construe his pleadings. See Cummings v. Evans, 

, 613 (10th Cir.

1998).

                                                A

         In most cases, AEDPA requires that a petition for a writ of habeas corpus be

brought within one year of “the date on which the judgment became final by the

conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). This statute of limitations is

tolled during a petitioner’s pursuit of post-conviction relief in state courts, § 2244(d)(2),

and may be tolled if the state creates impediments to filing “in violation of the

Constitution or laws of the United States,” § 2244(d)(1)(B).

         Cooley’s judgment became final on November 4, 2007, ninety days after he was

denied certiorari by the Colorado Supreme Court and the last day on which he could have

filed for certiorari with the United States Supreme Court. See Locke v. Saffle, 

, 1273 (10th Cir. 2001); Sup. Ct. R. 13.1. The AEDPA statute of limitations did not

begin to run on that date, however, because Cooley filed his Rule 35(b) motion in

October 2007. See 28 U.S.C. § 2242(d)(2) (tolling during post-convictions proceedings).

Tolling continued from the denial of this motion until the termination of the period during

which Cooley could have appealed the ruling, forty-five days later. See Gibson, 232 F.3d

                                               -3-
at 804; Colo. App. R. 4(b)(1). Thus, the AEDPA statute of limitations began to run on

March 28, 2008. Cooley filed his second post-conviction motion on May 26, 2009, but

because more than a year elapsed between the conclusion of Cooley’s Rule 35(b) motion

and the filing of his Rule 35(c) motion, his petition is time-barred. 28 U.S.C. §

2242(d)(1).

                                             B

       The Supreme Court recently held that AEDPA’s time limit may be equitably tolled

when a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way and prevented timely filing.” Holland

v. Florida, 

, 2562 (2010) (quotation omitted). Cooley contends that he is

entitled to equitable tolling under Holland because he did not know that his Rule 35(b)

motion was denied until August 2008. In Holland, the petitioner consistently and

diligently urged his attorney to file a timely habeas 

. His

attorney consistently and delinquently ignored him. 

held that gross

attorney negligence could be a basis for equitable tolling under AEDPA. 

       In contrast to the petitioner in Holland, Cooley does not show that he acted

diligently in pursuing his action. See 

He does not claim that he made any

effort to determine the status of his Rule 35(b) motion. Further, upon receiving notice of

the court’s denial, he did not file promptly, but waited nine months. He argues that this

was because of his mistaken belief that the AEDPA statute of limitations did not begin to

accrue until August 2008. Yet this type of negligence, even if understandable given

Cooley’s pro se status, does not justify equitable tolling. Cf. 

; see

                                            -4-
also Cordle v. Guarino, 

, 49 (1st Cir. 2005) (“[I]gnorance of the law alone,

even for incarcerated pro se prisoners, does not excuse an untimely habeas filing.”)

(quotation and alteration omitted). Cooley responds that the state should bear the burden

of his mistake because it failed to notify him of the status of his motion.1 But even if we

accept that the state’s mistake contributed to his failure to file a timely petition, Cooley

could have remedied the situation by simply filing at some point between August 2008

and the termination of the limitation period on March 28, 2009. His failure to do so

demonstrates a lack of diligence and renders him ineligible for equitable tolling.

                                             III

       For the forgoing reasons, we DENY a COA and DISMISS the appeal. We

GRANT Cooley’s motion to proceed in forma pauperis.



                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




       1
         Cooley also suggests that this failure was a state-created “impediment,” which
would re-set the AEDPA clock. § 2244(d)(1)(B). But he does not argue that the state
deliberately withheld notification of the failure of his motion or that such a mistake was
“in violation of the Constitution or laws of the United States.”