                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             DEC 6 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 MICHAEL DON ELLIS,

                Petitioner - Appellant,                   No. 98-6450
           v.                                           (W.D. Oklahoma)
 TOM C. MARTIN, Warden, and                         (D.C. No. CV-98-625-L)
 DREW EDMONDSON,

                Respondents - Appellees.


                              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.




       This order and judgment is not binding precedent, except under the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.
      Michael Don Ellis applies for a certificate of appealability to appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus as time barred under the one-year statute of limitations provided in 28

U.S.C. § 2244(d). On appeal, Ellis argues that the district court should have

equitably tolled the one-year statute of limitations, and alternatively, that the

statute of limitations for federal habeas petitions (1) violates the Suspension

Clause of the United States Constitution, (2) denies him substantive due process,

and (3) denies him the rights provided under the Oklahoma Post Conviction

Relief Act. We deny a certificate of appealability, and dismiss the appeal.



                                  BACKGROUND

      In 1986, Ellis was convicted of first-degree murder in Oklahoma state court

and sentenced to life imprisonment. On June 29, 1990, the Oklahoma Court of

Criminal Appeals affirmed both his conviction and sentence. Nearly seven years

later, on April 23, 1997, Ellis sought post-conviction relief in the District Court

of Oklahoma County, which denied his request on May 5, 1997. Ellis elected not

to appeal the denial, later stating that “the outcome was obvious.” Petitioner’s

Amd. Brief to Dist. Ct. at 2. On May 5, 1998, one year after his state post-

conviction request was denied, Ellis filed this federal habeas petition.




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                                         DISCUSSION

       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”     by passing

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).             Hoggro v.

Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). The AEDPA established a one-

year limitations period in which prisoners must file their federal habeas petitions.

See 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 the

AEDPA’s effective date, April 24, 1996, we have determined that the limitations

period commences on April 24, 1996, and expires one year later.         See Hoggro ,

150 F.3d at 1225-26. Under the AEDPA, the one-year limitations period is tolled

while the defendant pursues state post-conviction relief,      see 28 U.S.C.

§ 2244(d)(2), and we have held that the one-year limitations period “may be

subject to equitable tolling” as well.     Miller v. Marr , 141 F.3d 976, 978 (10th

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




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       A review of the record in this case demonstrates that Ellis’s federal habeas

petition was untimely. Because Ellis’s conviction became final prior to the

effective date of the AEDPA, his one-year period of limitations for filing a

federal habeas petition began running on April 24, 1996. On the final day of the

limitations period, April 23, 1997, Ellis filed an application for state post-

conviction relief, tolling the limitations period for the twelve days while his

application was pending in state court. When his application for post-conviction

relief was denied on May 5, the limitations period briefly resumed running until it

expired the following day, May 6, 1997. Ellis’s federal habeas petition, filed one

year later on May 5, 1998, was thus untimely.



                                            A.

       Ellis argues that the statute of limitations should be equitably tolled to

allow him to proceed on the merits of his habeas petition.    1
                                                                  We held in Miller v.

Marr that the one-year statute of limitations “may be subject to equitable tolling”

when the inmate has diligently pursued his claim.       See Miller v. Marr , 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



       Ellis appears to make this argument in his Pro Se Motion to Supplement
       1

the Record. Because we construe pro se pleadings liberally, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), we address his contention.

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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 and has in some

“extraordinary way” been prevented from asserting his rights). After his direct

appeal failed in 1990, Ellis waited nearly seven years until the last day of the

limitations period under the AEDPA before filing his state court request for post-

conviction relief. After that request was denied, he waited an additional year

before filing his federal habeas petition.

       Ellis argued below (and appears to argue here) that the delay in filing his

petition was attributable to his reliance on his attorney’s good faith miscalculation

of the statute of limitations. To the extent this may be construed as a claim of

ineffective assistance of counsel it fails since there is no     constitutional right to

counsel in collateral proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987). Further, neither Ellis’s misunderstanding nor his attorney’s mistake

excuses the delay.    See Miller v. Marr , 141 F.3d at 978 (petitioner’s lack of

awareness of limitation period insufficient basis for equitable tolling);      Taliani v.

Chrans , 189 F.3d 597 (7th Cir. 1999) (lawyer's mistake in calculating habeas

limitations period not a valid basis for equitable tolling). In short, it was not the

one-year limitation period that prevented Ellis from obtaining federal review of




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the legality of his conviction, but rather his own lack of diligence. Thus, the

district court properly refused to equitably toll the statute of limitations.



                                              B.

       Ellis also contends that the AEDPA’s imposition of a one-year limitations

period for filing a petition for a writ of habeas corpus is unconstitutional either

because the limitations period violates the Suspension Clause, U.S. Const. art. I,

§ 9, cl. 2, or is a violation of substantive due process. We reject these arguments.

The AEDPA, including its limitations period, is constitutional.       Cf. Felker v.

Turpin , 518 U.S. 651, 664 (1996);      Miller v. Marr , 141 F.3d at 978 . In particular,

the limitations period (which is not jurisdictional but is subject to equitable

tolling) does not prohibit habeas petitions but simply requires that they be filed

within a reasonable time. The one-year limitations period has the rational purpose

of encouraging the timely and efficient disposition of habeas claims. Thus,

Ellis’s constitutional claims fail.

       Ellis also contends that the limitations period in the AEDPA interferes with

the Oklahoma Post Conviction Relief Act. Specifically, he argues that the

Oklahoma law has no limitations period and that federal law now, as a practical

matter, imposes one. To the extent this argument is directed to the adequacy of

state law, it is inappropriate for federal habeas review.     See Estelle v. McGuire ,


                                             -6-
502 U.S. 62, 67 (1991). To the extent it may be interpreted as a constitutional

argument, we have disposed of that contention above.



                                  CONCLUSION

      For the reasons stated, we conclude that the district court did not err in

applying the one-year time limitation to bar Ellis’s petition. Accordingly, because

Ellis has failed to make a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we DENY his application for a certificate of

appealability and DISMISS the appeal.    Ellis’s pro se motion to supplement the

record is GRANTED in part; his pro se requests for an evidentiary hearing and for

court-appointed new counsel are DENIED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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