                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             NOV 22 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 CHARLES RAY SANDERS,

           Petitioner-Appellant,

 v.                                                        No. 00-6101
                                                          (W.D. Okla.)
 DEBBIE MAHAFFEY, Warden,                            (D.Ct. No. 99-CV-1931)

           Respondent-Appellee,

 and

 THE ATTORNEY GENERAL OF
 THE STATE OF OKLAHOMA,

           Respondent.
                           ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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          This order and judgment is not binding precedent except under the doctrines of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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Charles Ray Sanders, a state inmate appearing pro se, appeals the

district court’s decision denying his habeas petition filed under 28 U.S.C. § 2254

as time barred. We exercise our jurisdiction under 28 U.S.C. § 2253, deny Mr.

Sanders a certificate of appealability and permission to proceed in forma

pauperis, and dismiss his appeal.



      In February 1991, after pleading nolo contendere, Mr. Sanders received

state convictions for second degree burglary, first degree rape, forcible oral

sodomy, larceny of an automobile, robbery with a dangerous weapon and

attempted anal sodomy, each after former convictions of two or more felonies.

The state sentenced Mr. Sanders to twenty-five years imprisonment on each count,

to run concurrently. On March 27, 1992, the Oklahoma Court of Criminal

Appeals denied his request for a writ of certiorari. On February 11, 1999, Mr.

Sanders filed a state habeas application for post conviction relief. On June 21,

1999, the state district court denied the application, and the Oklahoma Court of

Criminal Appeals affirmed its decision on August 18, 1999.




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      On December 8, 1999, Mr. Sanders filed his § 2254 petition challenging his

convictions. The district court assigned the matter to a magistrate judge who

issued a Report and Recommendation, recommending denial of Mr. Sanders

petition as time-barred by the one-year limitation period proscribed under 28

U.S.C. 2244(d)(1). The magistrate judge explained the limitation period for filing

Mr. Sanders’ petition began April 24, 1996 and ended one year later. The

magistrate judge further explained that no tolling under § 2244(d)(2) occurred

because Mr. Sanders did not file his state habeas application until February 11,

1999 – well after the one-year limitation period ended. Finally, the magistrate

judge determined Mr. Sanders failed to show any circumstances warranting

equitable tolling of the one-year limitation period.



      After considering Mr. Sanders’ objections to the magistrate judge’s Report

and Recommendations and the state’s response thereto, the district court issued an

Order determining Mr. Sanders untimely filed his petition and that no equitable

tolling was warranted. In so doing, the district court rejected Mr. Sanders’

contention he did not know about the time restrictions for filing his federal habeas

petition and that the prison denied him access to a current version of the United

States Code. In rejecting Mr. Sanders’ contentions, the district court relied on an

affidavit of the prison law librarian who stated she posted a notice of the one-year


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limitation period on the prison law library bulletin board shortly after enactment

of the 1996 amendment to 28 U.S.C. § 2244(d), and that following the

amendment, the library contained the Criminal Law Reporter and the October

1996 cumulative supplement to the United States Code–both containing the

amendment at issue. Given these circumstances, the district court determined Mr.

Sanders failed to provide any specificity as to his alleged lack of access or that he

took steps to diligently pursue his federal claims. Accordingly, the district court

denied the petition and Mr. Sanders’ request for a certificate of appealability.



      On appeal, Mr. Sanders contends that in denying his appeal, the district

court failed to rely on Haines v. Kerner, 404 U.S. 519 (1972) and improperly

denied his request for appointment of counsel. He also renews his contention he

did not know about the one-year limitation period until March 3, 2000 when he

claims the prison law library first posted notice of its existence and that the prison

kept the United State Code Annotated pocket parts in the law library office area

which restricts access to inmates, other than law clerks. In support of his

contentions, Mr. Sanders submits an affidavit of a law clerk inmate, which he did

not provide the district court.



      When reviewing the denial of a § 2254 petition, we review the district court


                                          -4-
factual findings for clear error and its legal rulings de novo. See Rogers v.

Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944

(2000). After a careful review of the record, we conclude Mr. Sanders’ petition is

time barred and not subject to tolling under § 2244(d)(2). As to any equitable

tolling of the one-year limitation period, the district court properly addressed and

rejected Mr. Sanders’ allegations. For equitable tolling to apply, we have held it

is not enough to say the prison “lacked all relevant statutes and case law or that

the procedure to request specific materials was inadequate.” Miller v. Marr, 141

F.3d 976, 978 (10th Cir. ), cert. denied, 525 U.S. 891 (1998). Nor is a pro se

inmate’s ignorance of the one-year limitation period sufficient to equitably toll

the limitation period. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)

(relying on Miller, 141 F.3d at 978). Moreover, we point out that the affidavit

submitted by Mr. Sanders on appeal to support equitable tolling was not before

the district court for consideration. It is well established this court generally will

not consider an affidavit on appeal which was not before the district court. 1 See


       1
          Even if we considered the affidavit submitted by Mr. Sanders, it acknowledges
that shortly after the amendment of § 2244(d), the prison law library received the
Criminal Law Reporter and Cumulative Case and Statutory Case Service containing the
new amendment and placed them on the shelf for use by the general inmate population.
Even if these sources were subsequently placed in the law library office for safe keeping,
as the affidavit contends, Mr. Sanders has not shown he inquired about the possibility of
any supplement or pocket parts, that the prison denied him or other inmates access to
review them on request, or what other steps, if any, he personally took to diligently pursue
his state or federal post-conviction claims over the seven-year period following the direct

                                            -5-
United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (relying on Fed.

R. App. P. 10(e)).



       As to Mr. Sanders’ complaint he is entitled to an attorney, we have held no

constitutional right to counsel extends beyond appeal of a criminal conviction and

“that generally appointment of counsel in a § 2254 proceeding is left to the

court’s discretion.” Swazo v. Wyoming Dep’t of Corr., 23 F.3d 332, 333 (10th

Cir. 1994). Finally, even if we construe Mr. Sanders’ pro se pleadings liberally

under Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it is clear he fails to make a

substantial showing of the denial of a constitutional right as required under 28

U.S.C. § 2253(c)(2) for a certificate of appealability. Specifically, Mr. Sanders

fails to demonstrate that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right or the district

court was correct in it procedural ruling. See Slack v. McDaniel, 529 U.S. 473,

___, 120 S. Ct. 1595, 1604 (2000).



       Accordingly, for substantially the same reasons set forth in the district

court’s April 25, 2000, March 8, 2000, and January 19, 2000 Orders, and the




appeal of his conviction.


                                           -6-
magistrate judge’s December 15, 2000 Report and Recommendation, we deny Mr.

Sanders’ motion for a certificate of appealability, deny his motion to proceed in

forma pauperis, and DISMISS his appeal.




                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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