                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 19 2004
                               TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 BEVERLY BERNICE HALL,

             Petitioner-Appellant,                       No. 04-5049
       v.                                             (N.D. Oklahoma)
 RON J. WARD, ATTORNEY                            (D.C. No. CV-03-59-H(J))
 GENERAL OF THE STATE OF
 OKLAHOMA,

             Respondents-Appellees.




                                     ORDER



Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Beverly Hall, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the denial of her 28 U.S.C. § 2254 habeas petition.

We deny her request for a COA and dismiss this matter.

      Ms. Hall entered a plea of guilty on one court of first degree manslaughter

after former conviction of a felony, and one count of unauthorized use of a motor

vehicle. She was sentenced to thirty years on the manslaughter charge and ten

years on the vehicle charge, to be served concurrently. Ms. Hall filed a timely
motion to withdraw her plea in state court, which was denied. On April 21, 2001,

the Oklahoma Court of Criminal Appeals denied her petition for certiorari.

        Ms. Hall filed an application in the state district court for post-conviction

relief on July 16, 2002. The district court denied this petition on October 4, 2002

and the Oklahoma Court of Criminal Appeals affirmed the denial on January 9,

2003.

        Ms. Hall filed her § 2254 petition on January 15, 2003, asserting ineffective

assistance of trial and appellate counsel, and actual innocence. The district court

denied the petition as untimely under 28 U.S.C. § 2244(d)(1) and found that

equitable tolling did not excuse its untimeliness.

        We review de novo the district court’s denial of a habeas petition based on

§ 2244(d), reviewing a district court’s findings of fact for clear error. Burger v.

Scott, 317 F.3d 1133, 1137-38 (10th Cir. 2003). “[W]e review the district court’s

decision on equitable tolling of the limitations period [, however,] for an abuse of

discretion.” Id. at 1138. Because Ms. Hall is proceeding pro se, we construe her

pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

        Where, as here, a district court denies a habeas petition on procedural

grounds without reaching the underlying constitutional claims, a COA should

issue if the petitioner demonstrates “that jurists of reason would find it debatable


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whether the petition states a valid claim of the denial of a constitutional right, and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).

      Congress has “established a one-year period of limitations for habeas

petitions.” Hoggro v. Boone, 150 F.3d 1223, 1225 (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). The one-year limitations period is tolled, however,

for “[t]he time during which a properly filed application for State post-conviction

relief . . . is pending,” see id. § 2244(d)(2), and may also in rare circumstances

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

1998); see Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (discussing the

limited circumstances in which equitable tolling may be warranted and noting that

“[s]imple excusable neglect is not sufficient”).

      We agree with the district court’s conclusion that under § 2244(d), Ms. Hall

filed her habeas petition after the expiration of the one-year statute of limitations.

Ms. Hall’s conviction became final on July 11, 2001, after the 90-day time period

for filing a petition for a writ of certiorari in the United States Supreme Court had

lapsed. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). As a result,



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the one-year limitation clock started to run on July 11, 2001. Absent a tolling

event, Ms. Hall was therefore required to file her habeas petition on or before

July 11, 2002, for the petition to be timely. Because Ms. Hall did not seek post-

conviction relief until after July 11, 2002, no tolling event occurred.

      Ms. Hall contends that, with the application of the prisoner mailbox rule

announced in Houston v. Lack, 487 U.S. 266 (1988), her application for post-

conviction relief was actually filed on either July 11 or July 12, 2002. We agree

with the district court that the prisoner mailbox rule does not apply to Oklahoma’s

state post-conviction filings. See Moore v. Gibson, 27 P.3d 483 (Okla Ct. Crim.

App. 2001). We therefore reject Ms. Hall’s argument.

      Ms. Hall also sought equitable tolling before the district court. Equitable

tolling is appropriate only “when an inmate diligently pursues h[er] claims and

demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond h[er] control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000) (emphasis added). Ms. Hall claims she is actually innocent and that

her innocence should toll AEDPA’s one-year limitations period.

      [W]e have limited equitable tolling of the one-year limitations period
      to “rare and exceptional” circumstances. Therefore, [e]quitable tolling
      would be appropriate, for example, when a prisoner is actually
      innocent, when an adversary’s conduct–or other uncontrollable
      circumstances–prevents a prisoner from timely filing, or when a
      prisoner actively pursues judicial remedies but files a defective pleading
      during the statutory period.



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Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003) (emphasis added) (citation

omitted).

      To demonstrate actual innocence before the district court, a petitioner must

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

convicted h[er] in light of the new evidence.’” Phillips v. Ferguson, 182 F.3d

769, 774 (10th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). To

support her claim of actual innocence, Ms. Hall offers her ineffective assistance

of counsel claim, contends there was no factual basis for the plea, and reiterates

her demand for a trial by jury. We have reviewed the entire record, the district

court’s order, and the brief on appeal. We agree with the district court’s

conclusion that Ms. Hall is not entitled to equitable tolling.

                                 III. CONCLUSION

      We conclude that the district court correctly dismissed Ms. Hall’s habeas

petition as untimely. We determine that Ms. Hall has failed to raise a debatable

issue, and therefore we DENY her request for a COA, and DISMISS the appeal.



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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