                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                        February 2, 2006
                     UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                TENTH CIRCUIT                             Clerk of Court


 ERNIE JOE FIELDS,

       Petitioner,
 v.                                                     No. 05-5054
                                             (D.C. No. 04-CV-0454-CVE-FHM)
 RON WARD, Director, Oklahoma                           (N.D. Okla.)
 Department of Corrections,

       Respondent.


                      ORDER DENYING A CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



      Ernie Joe Fields, a state prisoner proceeding pro se, requests a certificate of

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

petition. For substantially the same reasons set forth by the district court, we

DENY a COA and DISMISS.

      In 1992, Fields pleaded nolo contendere to charges of kidnapping, rape,

feloniously pointing a firearm, and oral sodomy in Oklahoma state court. He was

sentenced to three ten-year sentences and one twelve-year sentence. All of these

sentences were suspended with supervision. His conviction was affirmed on
appeal, with a final order denying certiorari from the Oklahoma Court of Criminal

Appeals (“OCCA”) issued on November 20, 1992.

      In 1997, Fields pled guilty to placing bodily wastes and fluids on a

government employee and sentenced to two years, suspended. In 1998, Fields

violated a protective order that had been entered on behalf of a Carolina Fields,

the mother of Fields’ children which Fields subsequently violated.

      Oklahoma filed a motion to revoke the suspended sentences for both the

original and the bodily waste convictions on the grounds that he violated the

terms of his probation. After a hearing, the state court revoked the suspension of

all of Fields’ sentences. Fields was sent to prison for a term of nine years with

the sentences on all crimes – both the initial crimes and the bodily waste crime –

to be served concurrently. The OCCA affirmed the revocation of the suspended

sentences on January 7, 2002.

      On April 2, 2002, Fields filed an application for post-conviction relief,

which was denied by the state district court on May 21, 2002. His appeal was

denied by the OCCA on July 31, 2002 for having been filed beyond the 30-day

period permitted under state law. He filed a second application for post-

conviction relief on October 7, 2002, which was denied by the state district court

on November 14, 2002. He appealed and, on February 14, 2003, the OCCA

rejected his appeal as improperly filed. He filed a petition for habeas corpus in


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state court on November 18, 2003, which was finally denied by the OCCA on

February 2, 2004.

      Fields then filed his petition for federal habeas corpus in the Northern

District of Oklahoma on June 3, 2004, challenging the 1992 convictions.

Oklahoma moved to dismiss the petition as time-barred. In response, Fields asked

to amend his petition to assert claims arising out of the revocation hearing.

      The district court held that both the claims relating to the original

conviction and the claims arising out of the revocation hearing were time-barred.

Fields sought a COA from the district court and was denied. Failing to secure a

COA from that court, Fields now seeks a COA from this court. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U.S.C. § 2244(d). It states:



      1
         Fields’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n. 1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Fields’ to show “that reasonable jurists could
debate whether (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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Fields a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of –
          (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review;
          (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of the
      United States is removed, if the applicant was prevented from filing
      by such State action;
          (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been newly
      recognized by the Supreme Court and made retroactively applicable
      to cases on collateral review; or
          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
       (2) 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 shall not be counted toward
      any period of limitation under this subsection.


Because this law went into effect on April 24, 1996, petitioners with convictions

that became final before that date had until April 24, 1997 to file their petitions.

United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003). Fields’ original

conviction became final on November 20, 1992. He did not file his § 2254

habeas petition until June 3, 2004. He makes no claim that the twelve-year time

delay was justified by equitable tolling. These claims are hence time-barred.

      The claims arising out of the revocation hearing are similarly time-barred.

The revocation hearing became final on January 7, 2002. His first petition for


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post-conviction relief tolled the statute of limitations for 79 days; the amount of

time between the petition and thirty days after the state district court dismissed

the challenge. It was not tolled during the period the state habeas petition was

reviewed by the OCCA because the petition was not “properly filed.” Gibson v.

Klinger, 232 F.3d 799, 803-04 (10th Cir. 2000). His second petition tolled the

clock for 68 days; because his appeal was again improperly filed, the clock was

only tolled for the time between the date the petition was filed and thirty days

after the state district court dismissed the challenge. Together, these two

petitions served to push the statute of limitations back until June 3, 2003.

Because his third petition for state post-conviction relief was filed after this date,

it does not extend the limitations period. His habeas petition in federal court was

not filed until June 3, 2004. This was clearly beyond the statute of limitations.

      In response, Fields claims that the statute of limitations for the claims

arising out of revocation hearing should have been equitably tolled. Equitable

tolling “is only available when an inmate diligently pursues his claims and

demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). Fields alleges that his access to a law library was restricted. This

claim fails because he does not make a specific showing of restricted access to

relevant materials or that he diligently pursued his federal claim. Miller v. Marr,


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141 F.3d 976, 978 (10th Cir. 1998). He further makes conclusory allegations that

his petitions for state post-conviction relief were improperly filed because of the

interference with his mail by prison officials. Even if backed by facts, this

argument would not succeed because his petition would have been time-barred

even if his state habeas petitions had been properly filed. Fields makes other

arguments for equitable tolling – his alleged innocence, the lack of help he

received from a law clerk, and the state court’s lack of jurisdiction – but they are

not relevant factors for an equitable tolling analysis. Fields’ federal habeas

petition is barred by the statute of limitations.

      For the reasons set forth above, Fields’ request for a COA is DENIED and

the appeal is DISMISSED.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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