                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           AUG 31 2001
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 DARREN G. SMITH,

              Petitioner - Appellant,

 v.                                                      No. 01-1230
                                                      (No. 00-WM-1133)
 JOHN W. SUTHERS, Executive                          (District of Colorado)
 Director of the Colorado Department
 of Corrections; ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents - Appellees.


                           ORDER AND JUDGMENT             *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



      Pro se petitioner Darren G. Smith, a Colorado state prisoner, seeks a

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge

the district court’s dismissal of his petition for a writ of habeas corpus as time-



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
barred under 28 U.S.C. § 2244(d). We conclude that petitioner has not

demonstrated extraordinary circumstances warranting equitable tolling of the

period of limitation, and we deny COA.

      Petitioner was convicted by a Denver District Court jury on February 27,

1992, of attempted first-degree murder, first-degree assault, conspiracy to commit

first-degree murder, crime of violence, and two habitual offender counts.

Petitioner appealed and the Colorado Court of Appeals affirmed the conviction on

March 24, 1994. Petitioner filed a request for certiorari review with the Colorado

Supreme Court on or about April 25, 1994, which was denied. The Colorado

Court of Appeals issued a mandate on October 3, 1994. Petitioner filed a motion

for post-conviction relief (“Rule 35(c) motion”) on March 14, 1995,   and an

amended motion on April 10, 1995, which were denied by the state trial court on

June 15, 1995. Petitioner did not appeal the denial of his Rule 35(c) motions.

Petitioner filed his federal habeas corpus application on June 5, 2000. A

magistrate judge recommended that the application be dismissed with prejudice.

The district judge accepted the recommendation on April 4, 2001, and denied

petitioner’s application for COA.

      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, prisoners generally have one

year from the date on which their convictions become final to petition for federal


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habeas corpus relief. 28 U.S.C. § 2244(d)(1). A conviction becomes final “by

the conclusion of direct review or the expiration of the time for seeking such

review.” § 2244(d)(1)(A). We have held that “prisoners whose convictions

became final on or before April 24, 1996 must file their [habeas] motions before

April 24, 1997.”    United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).

The one-year period of limitation is subject to equitable tolling in extraordinary

circumstances.     See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       Petitioner’s conviction became final on January 2, 1995, ninety days after

the Supreme Court of Colorado denied his request for certiorari review and the

Colorado Court of Appeals issued its final mandate.       See Locke v. Saffle , 237

F.3d 1269, 1273 (10th Cir. 2001) (holding that conviction is final and one-year

statute of limitations begins to run after United States Supreme Court denies

review, or if no petition for certiorari is filed, after the time for filing a petition

for certiorari has passed). Because petitioner’s conviction became final before

the effective date of AEDPA, he had one year from April 24, 1996 (the statute’s

effective date) to file his § 2254 petition, unless the statute was tolled. Petitioner

did not file his § 2254 petition until June 5, 2000. The statute was not tolled

under 28 U.S.C. § 2244(d)(2) because no “properly filed application for State

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

or claim” was pending between April 24, 1996, and April 24, 1997. His petition


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is thus time-barred.

       Petitioner argues, however, that equitable tolling of the statute is warranted

due to his illiteracy. The district court rejected this argument, noting that neither

ignorance of the law nor illiteracy presents an exceptional circumstance to

support equitable tolling.      See Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir.

2000) (ignorance of the law),      cert. denied , 121 S. Ct. 1195 (2001);   Turner v.

Johnson , 177 F.3d 390, 392 (5th Cir.) (illiteracy),     cert. denied , 528 U.S. 1007

(1999). At any rate, the magistrate judge observed that the record, which

included two pro se motions filed in state court in 1995 and 1997, did not support

petitioner’s claim of illiteracy.

       Petitioner also argues     that the statute should be tolled to prevent a

fundamental miscarriage of justice. In support of this argument, he claims to

have new evidence that an identification witness who testified against him now

claims to have been coerced in her testimony. However, the fundamental

miscarriage of justice exception is an “extremely narrow exception, implicated

only in ‘an extraordinary case, where a constitutional violation has probably

resulted in the conviction of one who is actually innocent.’” Ballinger v. Kerby, 3

F.3d 1371, 1375 (10th Cir. 1993) (quoting Murray v. Carrier, 477 U.S. 478, 496

(1986)). To prevail, petitioner must identify evidence that affirmatively

demonstrates his innocence. See Schlup v. Delo, 513 U.S. 298, 327 (1995). A


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habeas petitioner is required to provide evidence that does more than simply

“undermine the finding of guilt against” him. Ballinger, 3 F.3d at 1375. We

conclude that petitioner has not presented us with evidence of actual innocence

establishing that “it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327.

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

Petitioner’s motion to proceed in forma pauperis is   GRANTED .

      The mandate shall issue forthwith.



                                                      Entered for the Court,



                                                      Carlos F. Lucero
                                                      Circuit Judge




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