                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 18 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


DERRICK C. WARE,

          Petitioner - Appellant,
                                                       No. 02-6016
v.                                               D.C. No. CIV-00-1871-L
                                                    (W. D. Oklahoma)
LENORA JORDAN,

          Respondent - Appellee.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      This case is before the court on Derrick C. Ware’s    pro se request for a

certificate of appealability (“COA”). Ware seeks a COA so he can appeal the

district court’s dismissal of the habeas petition he filed pursuant to 28 U.S.C. §

2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken

from the denial of a § 2254 petition unless the petitioner first obtains a COA).

      Ware was convicted in Oklahoma state court of robbery with firearms and

sentenced to 100 years’ imprisonment. Ware’s conviction was affirmed by the

Oklahoma Court of Criminal Appeals (“OCCA”) on August 31, 1994. A

corrected order was issued by the OCCA on December 2, 1994. Ware’s

application for post-conviction relief, filed with the state court on September 30,

1998, was denied.    1



      Ware filed his § 2254 petition on October 25, 2000. Because Ware’s state

conviction became final prior to the enactment of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), his § 2254 petition should have been filed prior

to April 24, 1997.       See Adams v. LeMaster , 223 F.3d 1177, 1180 (10th Cir. 2000)

(reiterating that a state prisoner generally has one year from the effective date of

the AEDPA to file a § 2254 habeas petition). On November 15, 2000, the district

court ordered Ware to show cause why the petition should not be dismissed as


      1
        Nothing in the record conclusively indicates whether Ware appealed the
denial of his application for post-conviction relief. The issue, however, is
irrelevant to the disposition of Ware’s § 2254 petition.

                                            -2-
untimely. Ware filed a response to the order to show cause arguing first that his

petition was timely filed pursuant to 28 U.S.C. § 2241(d)(1)(D). Ware also

asserted that the limitations period should be equitably tolled because of

extraordinary circumstances and because he is actually innocent of the charges of

which he was convicted.

      The magistrate judge prepared a comprehensive Report and

Recommendation addressing each of Ware’s arguments. The magistrate judge

first concluded that Ware’s § 2254 petition was not timely under 18 U.S.C. §

2244(d)(1)(D) because Ware was aware of the factual predicate for the claims

raised in the petition no later than March 1993. The magistrate judge also noted

that Ware’s state application for post-conviction relief could not toll the AEDPA

limitations period because it was filed after the limitations period expired. The

magistrate judge then considered Ware’s assertion that the limitations period

should be equitably tolled because Oklahoma prison officials took away his

“legal work.” The magistrate accepted Ware’s factual assertions as true and

noted that Ware’s § 2254 petition was untimely even if the limitations period was

equitably tolled during the time he was denied access to his legal work. The

magistrate judge also considered the other bases for equitable tolling asserted by

Ware and concluded that none constituted an extraordinary circumstance that




                                         -3-
warranted equitable tolling. Finally, Ware’s conclusory allegation of actual

innocence was insufficient to entitle him to equitable tolling.

       After considering Ware’s objections to the Report and Recommendation,

the district court adopted the magistrate’s recommendation and dismissed Ware’s

petition. The court also denied Ware’s request for a COA. Before he is entitled

to a COA from this court, Ware must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Ware may make this showing

by demonstrating the issues raised are debatable among jurists, a court could

resolve the issues differently, or that the questions presented deserve further

proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).

       This court has reviewed Ware’s application for a COA, his appellate brief,

and the entire record on appeal. That     de novo review clearly demonstrates the

district court’s dismissal of Ware’s § 2254 petition as untimely is not deserving

of further proceedings or subject to a different resolution on appeal.   2



Accordingly, this court   denies Ware’s request for a COA for substantially those

reasons set forth in the magistrate judge’s Report and Recommendation dated


       2
        Ware’s application for a COA could be construed to contain an argument
that he should be allowed to proceed under 28 U.S.C. § 2241 if he is foreclosed
from proceeding under § 2254 because of the limitations period. We are
convinced, however, that this case presents no circumstances where the
limitations period “raises serious constitutional questions and possibly renders the
habeas remedy inadequate and ineffective.” Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998).

                                            -4-
December 19, 2000 and the district court’s order dated January 2, 2002, and

dismisses this appeal.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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