                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         May 16, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 TH O MA S EV ER SO N ,

                 Petitioner-A ppellant,                  No. 06-3405
          v.                                             (D . of Kan.)
 K A N SA S D EPA RTM EN T O F                   (D.C. No. 06-CV-3294-SAC)
 CO RR ECTIONS,

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Petitioner-Appellant Thomas Everson, a state prisoner appearing pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district

court did not address Everson’s substantive claims, instead dismissing the petition

as untimely. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253. For


      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
substantially the same reasons as the district court, we deny the application for

C OA .

                                     I. Background

         Everson was convicted in Kansas state court of rape and aggravated

sodomy in 1980. The Supreme Court of Kansas affirmed his conviction in 1981.

State v. Everson, 626 P.2d 1189 (1981). In his federal habeas petition, Everson

says he filed two petitions for post-conviction relief in state court. He claims to

have filed the first one in 1996 under case number 96-C-1217 and appeal number

96-77134-A, and court records show the Kansas Court of Appeals disposed of

Everson’s petition on M ay 21, 1997. He did not appeal the 1996 petition to the

Kansas Supreme Court. Everson says he filed his second petition for post-

conviction relief on February 9, 2004. He says the Kansas Supreme Court denied

certiorari on that petition on August 4, 2006.

         Everson filed this habeas corpus petition in federal district court on

October 19, 2006. Everson claims his conviction violated (1) the equal protection

clause of the Fourteenth Amendment because blacks were excluded from the jury;

(2) the due process clause of the Fourteenth Amendment because the court failed

to properly instruct the jury on the elements of rape; and (3) the Sixth

Amendment because he was denied effective assistance of counsel when his

counsel failed to raise these issues on direct appeal.




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      The district court determined Everson had one year from enactment of the

Antiterrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, to

seek federal habeas corpus relief regarding his pre-A EDPA conviction.

Accordingly, the district court initially issued Everson an order to show cause

why his § 2254 petition was not time-barred.

      Everson responded that he had filed petitions for post-conviction relief in

state court that should toll the statute of limitations, but he provided no additional

dates other than the 2004 state petition originally cited in his federal petition.

Everson further asserted that he had been held in long-term segregation and did

not have access to the legal resources necessary to prepare a petition. Finally, he

mentioned that when the Kansas Supreme Court denied certiorari on his 2004

petition in 2006, his attorney advised him to pursue federal remedies, implying

that he relied on his attorney’s advice in waiting to file a petition in federal court.

      After reviewing Everson’s response, the district court dismissed the

petition. It concluded that Everson had failed to file a post-conviction action in

state court before A pril 24, 1997 that would toll the limitations period for a

§ 2254 petition. Because the limitations period for Everson expired on April 24,

1997, Everson’s 2004 state court action could have no tolling effect on the

already-expired limitations period.

      The district court also determined Everson’s showing of cause for failure to

timely file his petition was insufficient. The court noted equitable tolling is an

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extraordinary remedy. Because Everson failed to allege specific facts about how

lack of access to legal resources impeded his ability to timely file a claim, his

unsubstantiated claim that he lacked resources w as insufficient.

      Finally, the court also noted attorney error does not generally give rise to

equitable tolling, citing Harris v. Hutchinson, 209 F.3d 325, 330–31 (4th Cir.

2000), and determined Everson’s claim of innocence was not otherwise a “rare

and exceptional circumstance” sufficient to support equitable tolling. Order 2.

                                   II. Discussion

      W e may issue a CO A “only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

standard, Everson must show “that reasonable jurists could debate w hether (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.” Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007)

(quoting Slack v. M cDaniel, 529 U.S. 473, 484 (2000)). “[W]hen the district

court’s ruling is based on procedural grounds, the petitioner must demonstrate

that ‘jurists of reason would find it debatable w hether 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.’” Id.

(quoting Slack, 529 U.S. at 484). W e do not find the district court’s procedural

ruling debatable.

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        AEDPA imposes a one-year limitations period on filing federal habeas

petitions. 28 U.S.C. § 2244(d). The district court correctly concluded Everson

had one year after the enactment of AEDPA to file his federal petition for post-

conviction relief; specifically, he had until A pril 24, 1997. See M iller v. M arr,

141 F.3d 976, 977 (10th Cir. 1998). However, 28 U.S.C. § 2244(d)(2) tolls the

statute “for the time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or

claim is pending in state court.” Fleming, 481 F.3d at 1254. “In addition, the

limitations period may be equitably tolled if the petitioner ‘diligently pursues his

claims and demonstrates that failure to timely file w as caused by extraordinary

circumstances beyond his control.’” Id. (quoting M arsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000)). The district court’s ruling that AEDPA ’s limitations

period was not statutorily or equitably tolled is not reasonably debatable.

      In determining whether Everson’s state court actions tolled the limitations

period, the district court considered only Everson’s 2004 state action. Everson’s

petition for habeas corpus in federal court also mentioned a 1996 state action,

though Everson did not provide dates or records for this case. Even if Everson’s

1996 action tolled the statute of limitations, according to K ansas court records,

the tolling period ended no later than 1997 when Everson failed to appeal that

case to the Kansas Supreme Court. Even if we assume Everson’s 1996 state

action tolled the limitations period until 1997, the one-year limitations period

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expired long before Everson filed his 2004 state action or the present 2006 federal

habeas petition. The record does not disclose any other state actions by Everson.

Thus reasonable jurists could not conclude that the limitations period was

statutorily tolled beyond 1997 based on Everson’s actions in state court.

      Neither could a reasonable jurist conclude equitable tolling is appropriate

in this case. The district court correctly noted equitable tolling is available only

“when an inmate diligently pursues his claims and demonstrates that the failure to

timely file was caused by extraordinary circumstances beyond his control.”

M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Everson has not made

any such showing to explain why we should apply equitable tolling to the seven-

year period between his state court petitions when Everson had no state court

action pending. He provides no facts about the dates or circumstances of his

segregation or facts demonstrating how his segregation prevented him from timely

filing for post-conviction relief in either federal or state court. Thus, he makes no

showing that he diligently pursued his claims or that the circumstances impeding

his claims were extraordinary.

      Everson also mentions as justification for equitable tolling that his attorney

advised him in a letter to pursue federal habeas relief when the Kansas Supreme

Court declined to review his 2004 state court action. He apparently argues the

limitations period should equitably be tolled because he followed his attorney’s

advice. Contrary to the district court’s holding that attorney error does not

                                          -6-
support equitable tolling, we have recently held that “sufficiently egregious

misconduct on the part of a habeas petitioner’s counsel may justify equitable

tolling of the AEDPA limitations period.” Fleming, 481 F.3d at 1256 (finding

limitations period could be tolled when attorney repeatedly affirmatively

represented that he was preparing a petition to be filed). The letter from

Everson’s attorney, however, does not in any way show egregious misconduct or

even error. The attorney’s letter merely terminates the attorney-client

relationship based on the concluded state appeal, informs Everson that federal

relief may be available subject to time limitations, and suggests other resources to

assist him in determining whether and how to pursue federal relief. The letter

does not represent to Everson that time limitations will not bar his claim.

Furthermore, Everson received the letter after he filed his federal habeas petition,

so Everson could not have relied on the letter when he delayed bringing a federal

action.

      Everson also argues that failing to reach the merits of his petition would

result in a manifest injustice because “justice would be in everyone’s best interest

instead of leaving an innocent man in prison.” Aplt. Br. 4. To prevail on such a

claim of innocence, Everson “must demonstrate that, in light of all the evidence,

it is more likely than not that no reasonable juror would have convicted him.”

Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations omitted).

The only claim Everson makes that potentially addresses his “actual innocence” is

                                         -7-
that the trial court failed to correctly instruct the jury on the elements of rape.

The jury convicted Everson on the theory of rape that he overcame his victim’s

resistance by force or fear. Everson argues the trial court should have instructed

the jury that no rape occurred if his victim voluntarily consumed drugs or alcohol.

But Everson misreads the Kansas statute he cites. The instruction Everson wants

does not apply if the defendant overcame his victim’s resistance by force or fear.

See Kan. Stat. Ann. § 21-3502 (1978). Accordingly, Everson has made no

showing of actual innocence.

                                   III. Conclusion

      For the reasons stated, we DENY the request for COA and DISM ISS the

appeal.

                                                       Entered for the Court

                                                       Timothy M . Tymkovich
                                                       Circuit Judge




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