                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 27 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 KENNETH DEWAYNE DOUGLAS,

           Petitioner-Appellant,
 v.                                                        No. 99-5062
 H.N. “SONNY’ SCOTT,                                 (D.C. No. 98-CV-86-K)
                                                           (N.D.Okla.)
           Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY and BRISCOE, 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.

       Kenneth DeWayne Scott, an Oklahoma state prisoner appearing pro se,

seeks a certificate of appealability to appeal the district court’s denial of his 28

U.S.C. § 2254 petition for writ of habeas corpus. Because we conclude Scott has


       This order and judgment is not binding precedent, except under the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.
failed to make “a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability and

dismiss the appeal.

                                           I.

      Scott was convicted in October 1987 in the District Court of Tulsa County,

Oklahoma, on one count of second degree burglary, one count of assault with a

dangerous weapon, and one count of escape from lawful custody, and was

sentenced to separate terms of imprisonment of twenty-five, forty, and twenty-

five years. Scott filed a direct appeal and, on July 10, 1990, the Oklahoma Court

of Criminal Appeals affirmed his convictions, but modified his sentences to

twenty, thirty, and twenty years (it is unclear from the record whether the

sentences are concurrent or consecutive). Scott apparently did not seek certiorari

review from the United States Supreme Court.

      On March 11, 1997, Scott filed an application for post-conviction relief

with the state trial court, which was denied on March 31, 1997. Scott appealed

and, on May 20, 1997, the Oklahoma Court of Criminal Appeals affirmed the trial

court’s denial of post-conviction relief. Approximately eight months later, on

January 30, 1998, Scott filed his federal petition for writ of habeas corpus with

the district court. The district court dismissed Scott’s petition on statute of

limitations grounds and denied his request for a certificate of appealability.


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                                          II.

      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, 1224 (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 April 24,

1996, however, the new “one-year statute of limitations does not begin to run

until April 24, 1996.” Hoggro, 150 F.3d at 1225; United States v. Simmonds, 111

F.3d 737, 744-46 (10th Cir. 1997).

      The one-year period of limitations can be tolled by ongoing post-conviction

litigation in state court. See Hoggro, 150 F.3d at 1226. In particular, 28 U.S.C. §

2244(d)(2) provides “[t]he 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” the one-year period of

limitation. We have also indicated the one-year period of limitations “may be

subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.


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denied, 119 S.Ct. 210 (1998).

      Here, Scott’s federal habeas petition was filed on January 30, 1998,

approximately twenty-one months after his one-year statute of limitations began

running on April 24, 1996. Seeking to salvage his petition, Scott effectively

relies on both of the above-outlined tolling principles. Not only does Scott ask us

to toll the time during which his state post-conviction proceedings were pending

(i.e., from March 11, 1997, to May 20, 1997), he also asks us to toll additional

time on the basis of “‘extraordinary circumstances’ beyond his control which

made it impossible to file his habeas [petition] prior to the [expiration of] the

statutory period of limitation[s].” ROA, Doc. 11, at 5.

      Although we are bound by statute to toll the time during which Scott’s state

post-conviction proceedings were pending, we refuse to equitably toll any

additional time. In Miller, we indicated that equitable tolling principles apply

only where a prisoner has diligently pursued his federal habeas claims. 141 F.3d

at 978; see also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (AEDPA’s

one-year limitation period will be equitably tolled only “in rare and exceptional

circumstances”), cert. denied, 119 S.Ct. 1474 (1999); Miller v. New Jersey State

Dept. of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (equitable tolling

applies only where prisoner has diligently pursued claims, but has in some

“extraordinary way” been prevented from asserting his rights). Scott’s claim of


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“extraordinary circumstances” notwithstanding, the record on appeal fails to

demonstrate he diligently pursued his federal habeas claims. Most notably, the

record fails to justify the long delay from May 20, 1997 (the date the Oklahoma

Court of Criminal Appeals affirmed the denial of Scott’s post-conviction

application), to January 30, 1998 (the date Scott filed his federal habeas petition).

We therefore refuse to apply equitable tolling principles under these

circumstances, Miller, 141 F.3d at 978, and conclude Scott’s federal habeas

petition was filed out of time.

      The application for certificate of appealability 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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