                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 22 2003
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 MANUAL CRAWFORD,

          Petitioner - Appellant,
                                                      Nos. 02-6354 and 02-6371
 v.                                                    D.C. No. CIV-02-831-C
                                                          (W.D. Oklahoma)
 STATE OF OKLAHOMA,

          Respondent - Appellee.


                                ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of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 and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Manual Crawford, a state prisoner appearing pro se, seeks a certificate

of appealability (COA) to appeal the federal district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We deny a COA and dismiss the appeal.

       In 1993, Crawford was convicted by a jury of possession of cocaine after former

conviction of two or more felonies, and was sentenced to 90 years’ imprisonment. He did

not file a direct appeal but on June 30, 1995, he filed a request for post-conviction relief

in state court, seeking an appeal out of time. The state court denied relief on July 18,

1995, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed on August 15,

1998. Crawford filed a second application in state court on December 5, 1996, and a

third application in state court on February 12, 2002. Both applications were denied and

the OCCA affirmed.

       Crawford filed his § 2254 petition on June 17, 2002, alleging he was denied his

right to appeal due to ineffective assistance of counsel. The district court adopted the

magistrate’s findings and denied the petition as untimely under 28 U.S.C. § 2244(d)(1).

The district court found that no equitable tolling excused the untimeliness of the petition.

       Where, as here, a district court denies a habeas petition on procedural grounds

without reaching the underlying constitutional claims, a COA should issue if the

petitioner demonstrates “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right, and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Slack v.


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McDaniel, 529 U.S. 473, 478 (2000).

       On April 24, 1996, Congress amended what had been “the long-standing prior

practice in habeas corpus litigation that gave a [state] prisoner virtually unlimited

amounts of time to file a habeas petition in federal court,” and “established a one-year

period of limitations for [federal] habeas petitions.” Hoggro v. Boone, 150 F.3d 1223,

1225 (10th Cir. 1998) (citing 28 U.S.C. § 2244(d)(1)). By statute, the one-year period of

limitations generally begins running 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.”

28 U.S.C. § 2244(d)(1)(A). For prisoners whose convictions became final prior to the

Antiterrorism and Effective Death Penalty Act's (AEDPA) effective date (April 24,

1996), the limitations period commences on April 24, 1996, and expires one year later.

See Hoggro, 150 F.3d at 1225-26. Under the AEDPA, the one-year limitations period is

tolled while a defendant pursues state post-conviction relief, see 28 U.S.C. § 2244(d)(2),

and we have held that the one-year limitations period “may be subject to equitable

tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling of the

one-year statute of limitations is available only “in rare and exceptional circumstances.”

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

       Having carefully examined the record on appeal, we conclude the district court

was correct in finding the § 2254 petition was untimely. Crawford’s conviction became

final prior to the effective date of the AEDPA. However, his second state post-conviction


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application was filed on December 5, 1996, thus tolling the one-year limitations period

which had begun on April 24, 1996, until the OCCA affirmed the denial on April 11,

1997. See 28 U.S.C. § 2244(d)(2); Easterwood v. Champion, 213 F.3d 1321, 1323-24

(10th Cir. 2000). Therefore, Crawford’s one-year period of limitations began running

again on April 12, 1997, and expired on August 29, 1997. Crawford did not file his

federal habeas petition until June 17, 2002, almost five years after the expiration of the

limitations period. Crawford asserts that the limitations period should be equitably tolled

based on his incompetency and lack of access to adequate library facilities and trained

law clerks. We find his assertions insufficient to warrant equitable tolling. Further, we

agree with the district court that Crawford has failed to demonstrate that he diligently

pursued his federal habeas claims, thereby preventing him from relying on any type of

equitable tolling theory. See Miller, 141 F.3d at 978 (noting equitable tolling applies only

when inmate diligently pursues claims).

       The application for a COA is DENIED and the appeal is DISMISSED. The

mandate shall issue forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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