                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   SEP 11 2000
                                     TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 JOHN H. TAREPEN,

           Petitioner - Appellant,
                                                               No. 00-7074
 v.
                                                         (D.C. No. 00-CV-74-S)
                                                      (Eastern District of Oklahoma)
 DEBBIE MAHAFFEY,

           Respondent - Appellee.


                                 ORDER AND JUDGMENT*


Before BALDOCK, HENRY and LUCERO, Circuit Judges.


       John H. Tarepen, appearing pro se, seeks a Certificate of Appealability pursuant to

28 U.S.C. § 2253(c) to challenge the district court’s dismissal of his petition for a writ of

habeas corpus. The district court dismissed Tarepen’s petition because he failed to file a

response to respondent’s motion to dismiss in a timely manner and also because his

petition was time-barred by 28 U.S.C. § 2244(d). Because we conclude that Tarepen has




       *
          The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
not “made a substantial showing of the denial of a constitutional right,” we decline to

issue a certificate of appealability. 28 U.S.C. § 2253(c)(2).

       A jury convicted Tarepen of two counts of first degree rape and the trial court

sentenced him to consecutive terms of life imprisonment. On February 7, 1990 the

Oklahoma Court of Criminal Appeals affirmed his conviction.

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”), including the

provision subjecting 28 U.S.C. § 2255 motions to a one-year statute of limitations,

became effective on April 24, 1996.

       On April 9, 1998 Tarepen’s request for post-conviction relief was denied by the

District Court for Muskogee County, Oklahoma. His appeal from the denial of post-

conviction relief was denied by the Oklahoma Court of Criminal Appeals on October 15,

1998. Almost three years after the one-year statute of limitations had run on his ability to

petition for habeas relief, on February 9, 2000 Tarepen filed his habeas corpus petition.

       Tarepen argues that the district court erred in granting respondent’s motion to

dismiss. Respondent filed a motion to dismiss and Tarepen failed to respond to the

motion in a timely manner as required by Eastern District of Oklahoma Local Rule 7.1.

Tarepen asserts that because he is acting pro se and without the assistance of trained

counsel he was entitled to notice of the consequences of failing to respond to the motion.

Furthermore, he argues that Local Rule 7.1 fails to give adequate notice of the

consequences of a failure to respond.


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       We need not address Tarepen’s argument that his status as a pro se litigant requires

special notice of the consequences of failing to file a response to a motion to dismiss

because he can not overcome the fact that his petition is time-barred by 28 U.S.C. §

2244(d).

       Citing Bounds v. Smith, 430 U.S. 817 (1977), Tarepen attempts to get around his

failure to meet the statute of limitations by arguing that he was not provided with

adequate access to the courts. His argument is essentially one for equitable tolling of the

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

that the § 2244(d) limitation may be subject to equitable tolling). He argues that

respondent failed to put him on notice of his one-year deadline to file his habeas petition.

He states that the prison law library was inadequate because it provided only the 1994

editions of the United States Code Annotated and that the volumes were not accompanied

by the appropriate pocket parts, nor were the inmates informed of the existence of pocket

parts. Finally, Tarepen attaches the affidavit of Melton Pietrowski, law clerk at the

facility where he is held. Pietrowski attests that although the prison had copies of 28

U.S.C. § 2244(d) and the appropriate updates to the United States Code, such copies were

kept in the library office and were not generally available to the prison population, nor

was their existence public knowledge.

       We reject Tarepen’s argument that the statute of limitations should be equitably

tolled. Although the library situation which Tarepen and Pietrowski describe is far from


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laudable, equitable tolling is appropriate only in exceptional circumstances, and an inmate

is required to diligently pursue his claims in order to avail himself of tolling. See Miller,

141 F.3d at 978. In support of his appeal, Tarepen paints a picture of the prison’s failure

to make information available to him. Tarepen fails, however, to provide necessary

evidence of his own diligent pursuit of his claims that was prevented in some exceptional

way. In fact, Tarepen includes the facility law clerk’s affidavit in which the clerk states

his knowledge of the AEDPA and his knowledge that it was not widely available to the

inmates; Tarepen does not, however, assert that he ever sought the law clerk’s assistance

or that he was prevented from so doing. Furthermore, neither Tarepen nor Pietrowski

asserts that the appropriate pocket parts were unavailable to an inmate who diligently

sought out their existence.

       We see no grounds for the exercise of our equitable power to toll the AEDPA

limitations period in this case. The application for a certificate of appealability is

DENIED. This matter is DISMISSED.

       The mandate shall issue forthwith.



                                            ENTERED FOR THE COURT


                                            Carlos F. Lucero
                                            Circuit Judge




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