                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                       UNITED STATES COURT OF APPEALS SEP 24 2001

                             FOR THE TENTH CIRCUIT              PATRICK FISHER
                                                                          Clerk

    PAUL H. GIFFORD,

                  Petitioner-Appellant,

    v.                                                    No. 00-8091
                                                     (D.C. No. 98-CV-55-B)
    VANCE EVERETT, in his official                         (D. Wyo.)
    capacity as Warden, Wyoming
    Department of Corrections State
    Penitentiary; WYOMING
    ATTORNEY GENERAL,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before EBEL , KELLY , 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      This order and judgment is not binding precedent, except under the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 Paul H. Gifford appeals the district court’s order dismissing as

untimely his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C.

§ 2254. Because petitioner has not made a substantial showing that the district

court’s procedural ruling is debatable, we deny his application for a certificate of

appealability and dismiss the appeal.

       Petitioner is currently incarcerated in the custody of the Wyoming

Department of Corrections, after pleading guilty to aggravated kidnaping, first

degree sexual assault, aggravated assault, felony stalking, and felony restraint.

Because he did not file a direct appeal, petitioner’s conviction became final in

February 1994.

       On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), which substantially amended the process of

applying for habeas relief. AEDPA imposed a one-year limitation on a prisoner’s

right to apply for habeas relief, running from the date the prisoner’s conviction

became final. See 28 U.S.C. § 2244(d)(1). For state prisoners such as petitioner

whose convictions became final before AEDPA’s enactment, we recognized

a one-year grace period within which they were required to file their habeas

petitions. Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). This

one-year period is subject to both statutory and equitable tolling.   See 28 U.S.C.

§ 2244(d)(2); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Here, unless


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the limitations period was tolled for some reason, petitioner was required to file

his habeas petition before April 24, 1997.

       On April 23, 1997, petitioner filed a motion in the Wyoming state court to

withdraw his guilty plea and/or for post-conviction relief. The state district court

denied the motion on June 11, 1997, and the Wyoming Supreme Court affirmed

the denial on July 8, 1997. Petitioner filed his § 2254 habeas petition in the

federal district court on March 3, 1998. On December 1, 2000, the district court

dismissed the petition as untimely, finding that petitioner did not demonstrate

circumstances to justify equitably tolling the limitations period. Petitioner argues

that the district court erred in dismissing the petition as untimely.

       Before we may consider his appeal, petitioner must obtain a certificate of

appealability by making a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c). Because the district court dismissed his habeas

petition on a procedural ground, petitioner must show both “that jurists of reason

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

ruling,” and “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right.”   Slack v. McDaniel ,

529 U.S. 473, 484 (2000). Each of these steps is “part of a threshold inquiry” that

must be satisfied before the court of appeals may hear the appeal.      Id. at 485.




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       We conclude petitioner has not made the requisite showing. Section

2244(d)(2) tolls the one-year limitations period for “[t]he time during which a

properly filed application for State post-conviction or other collateral review . . .

is pending.” Because petitioner filed his state post-conviction motion on the day

the limitations period was to expire, he was required to file his federal petition on

July 8, 1997, when the Wyoming Supreme Court issued its decision affirming the

denial of post-conviction relief. His March 3, 1998 habeas petition was well

outside this period.

       Equitable tolling is appropriate “in rare and exceptional circumstances,”

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

as when a prisoner is actually innocent, when uncontrollable circumstances

prevent the prisoner from timely filing, or when the prisoner actively pursued

judicial remedies but filed a defective pleading during the statutory period,      id.

Simple excusable neglect is not sufficient.         Id. Moreover, petitioner must show

that he diligently pursued his federal habeas claims.        Marr , 141 F.3d at 978.

       The district court properly concluded that petitioner had not demonstrated

cause justifying equitable tolling. Petitioner argues that he was prevented from

timely filing his petition because the prison was on lockdown from June 26, 1997

to January 1998, thereby curtailing his access to the library or to a legal assistant,

and that he had a back injury that prevented him from pursuing his federal


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remedy. Petitioner has not shown how these circumstances prevented him from

timely filing his habeas petition, however, as his federal petition simply repeated

verbatim the grounds and legal arguments contained in his state post-conviction

motion. Further, petitioner has not demonstrated that he diligently pursued his

federal claims as he does not explain why he waited more than three years after

his conviction became final before filing the state post-conviction proceeding.

       Because petitioner has not made the threshold showing that jurists of reason

would find it debatable whether the district court abused its discretion in denying

his request for equitable tolling, we need not address whether he made a

substantial showing of the denial of a constitutional right.    Slack , 529 U.S. at 485.

       Petitioner’s application for a certificate of appealability is DENIED, and

his appeal is DISMISSED. The mandate shall issue forthwith.



                                                         Entered for the Court



                                                         David M. Ebel
                                                         Circuit Judge




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