                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUN 13 2001
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 ROBERT DONNELL JOHNSON,

                Petitioner-Appellant,                      No. 00-5210
           v.                                             N.D. Oklahoma
 JAMES SAFFLE, Director, Oklahoma                    (D.C. No. 99-CV-908-K)
 Department of Corrections,

                Respondent-Appellee.


                                ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , and MURPHY , 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)(c); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.



                                   I. BACKGROUND


       *
        This order and judgment is not binding precedent, except under the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.
      Robert D. Johnson, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the dismissal of his 28 U.S.C. § 2254 petition for

writ of habeas corpus. We issued a COA for the limited purpose of seeking a

State response to Mr. Johnson’s assertion that his petition was timely filed. We

agree with the district court’s finding that Mr. Johnson’s petition is untimely and

that he has not presented claims for which relief could be granted. Accordingly,

we dismiss the appeal.

      Mr. Johnson was convicted of kidnapping, and, having had six prior felony

convictions, he was sentenced to seventy-five years’ imprisonment. In his habeas

petition, Mr. Johnson alleged that (1) he was deprived of due process through an

erroneous jury instruction; (2) the state did not prove the elements of kidnapping

beyond a reasonable doubt; and (3) the prosecution made prejudicial remarks

during its closing argument. The district court dismissed Mr. Johnson’s petition

as untimely under the one-year limitations period in 28 U.S.C. § 2244(d)(1).



                                  II. DISCUSSION

A. Untimely Filing

      Mr. Johnson’s sentence became final on June 8, 1998, at which point, under

AEDPA, the one-year limitations period for filing a petition for a writ of habeas

corpus began to run,   see 28 U.S.C. § 2244(d)(1), subject to the tolling provision


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in 28 U.S.C. § 2244(d)(2). The district court properly tolled the limitations

period during the period in which his state post-conviction motions were pending,

from December 28, 1998, until April 6, 1999. The limitations period was also

tolled during the period in which Mr. Johnson could have sought an appeal under

state law. See Gibson v. Klinger , 232 F.3d 799, 804 (10th Cir. 2000). Taking

these considerations into account, we conclude that Mr. Johnson had to file his

federal habeas corpus petition by October 16, 1999, to be timely.   1
                                                                        See 28 U.S.C.

2244(d)(2).

      The Court Clerk of the Northern District received Mr. Johnson’s habeas

petition on October 25, 1999. The prison mail room log, attached to the State’s

response brief on appeal, shows that Mr. Johnson mailed his pleadings to the

Court Clerk and the Office of the Oklahoma Attorney General on October 20,

1999. However, Mr. Johnson signed the “Declaration Under Penalty of Perjury,”

where Mr. Johnson attested to the truth and validity of the petition, on October

18, 1999. Finally, Mr. Johnson included a handwritten “Certificate of Mailing”

beneath the “Declaration Under Penalty of Perjury,” stating that, “[o]n August 18,



      1
         We note that the district court did not toll the limitations period during
the thirty days Mr. Johnson could have appealed from the state court’s denial of
postconviction relief. See Gibson, 232 F.3d at 804. Consequently, the district
court determined the limitations period to have expired on September 16, rather
than on October 16, 1999. This miscalculation does not change the ultimate
determination that Mr. Johnson’s § 2254 petition was untimely.

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1999, a true and correct copy of the foregoing pleadings was mailed postage

prepaid to” the Attorney General of Oklahoma.

       On appeal, Mr. Johnson contends that he gave his petition to prison

officials on August 18, 1999, not on October 18, 1999. He maintains that the

prison officials refused to mail the petition until Mr. Johnson was able to pay for

the postage, which was in October 1999. Under this scenario, he urges us to hold

that his petition was timely filed.

       The district court found that, based on the date of the Declaration under

Perjury, the earliest day that Mr. Johnson could have delivered the petition to

prison officials for mailing was October 18, 1999,     i.e. , two days after the

limitations period expired. The State has attached the prison mail logs to his

response brief, which indicates the mail room mailed the petition on October 20,

1999. Although we note the discrepancies between the various dates, we cannot

say that the district court’s reliance on the October 18, 1999, date of the

Declaration under Perjury, rather than on the August 18, 1999, date of the

handwritten Certificate of Mailing date, was clear error.     See 28 U.S.C. §

2254(e)(1); see, e.g. , Hoggro v. Boone , 150 F.3d 1223, 1226 n.3 (10th Cir. 1998)

(holding that district court’s reliance on copy of prison mailing receipt was

sufficient evidence of date of mailing);   cf. Lamb v. Hargett , No. 95-625, 1995

WL 649706, at *1 n. 3 (10th Cir. Nov. 6, 1995) (unpublished table decision)


                                            -4-
(stating that district court’s reliance on a certificate of mailing, dated one day

earlier than motion for reconsideration, was sufficient evidence of filing under

Houston v. Lack ); McKnight v. White , No. 95-5043, 1995 WL 607623, at *1 n.4

(10th Cir. Oct. 16, 1995) (unpublished table decision) (noting that district court’s

reliance on certificate of mailing and notarization attached to notice of appeal

were sufficient evidence of a timely filing under     Houston v. Lack , 487 U.S. 266

(1988)); United States v. Warner , No. 94-3270, 1995 WL 307586, at *1 (10th Cir.

May 11, 1995) (unpublished table decision) (stating that district court’s reliance

on certificate of service sufficient evidence of date of filing notice of appeal);

Johnson v. Shillinger , No. 92-8057, 1993 WL 389468, at *2 n.3 (10th Cir. Oct. 5,

1993) (unpublished table decision) (holding that prisoner’s assertion,

corroborated by generic entry in prison mail log, sufficient);   Chambers v. Gunter ,

No. 92-1269, 1993 WL 147477, at *1 n.1 (10th Cir. May 5, 1993) (unpublished

table decision) (stating that prisoner’s assertion was sufficient, in the absence of

other evidence). Here, Mr. Johnson’s assertion that the date of mailing was

August 18, 1999 is controverted by several October 1999 dates: the date of the

prison log, the date of the certificate of service and the date of receipt by the

court clerk. Accordingly, we hold that the earliest Mr. Johnson gave his petition

to prison authorities was October 18, 1999, two days after the expiration of the

limitations period.


                                             -5-
       Mr. Johnson also asks us to reconsider his claim that, even if his petition

was untimely, equitable tolling is warranted. We have held that “AEDPA’s

one-year statute of limitations is subject to equitable tolling but only ‘in rare and

exceptional circumstances.’”      Gibson , 232 F.3d at 808 (quoting    Davis v. Johnson ,

158 F.3d 806, 811 (5th Cir. 1998)). Examples of such circumstances are actual

innocence or when uncontrollable circumstances prevent an inmate from timely

filing. “Simple excusable neglect is not sufficient.”     Id.

       In support of equitable tolling, Mr. Johnson argues that he was placed in

administrative lockdown for approximately thirty days.          See Rec. doc. 6, at 7. Mr.

Johnson also claims, without giving a reason, that from April 6, 1999, until

August 12, 1999, he was unable to prepare and file his federal habeas petition.

Mr. Johnson’s explanations are not sufficient. Inability to access legal materials

for a period of thirty days does not meet the threshold of “rare and exceptional

circumstances.”    See Gibson , 232 F.3d at 808 (internal quotation marks omitted).

Moreover, Mr. Johnson does not offer an adequate explanation for his delay when

he was not in lockdown.

       Thus, we agree with the conclusions of the district court that Mr. Johnson’s

petitions were untimely and that his pleadings, which we construe liberally

pursuant to Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), suggest

no basis for equitable tolling.   See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.


                                            -6-
1998). As such, Mr. Johnson has not demonstrated any extraordinary way that he

has been prevented from asserting his rights.     See id. (suggesting equitable tolling

of limitation period when delay is encountered with circumstances over which

inmate had no control and inmate has diligently pursued his claims).

       Accordingly, we GRANT his motion to proceed in forma pauperis and

DISMISS the appeal.



                                          Entered for the Court,



                                          Robert H. Henry
                                          Circuit Judge




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