                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                 TENTH CIRCUIT                                May 5, 2014
                        ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
Torey Ray Mayberry,

       Petitioner-Appellant,

                                                            No. 13-6277
v.
                                                     (D.C. No. 5:13-cv-01055-W)
                                                            (W.D. Okla.)
Hector Rios, Warden,

       Respondent-Appellee.
                    ____________________________________
        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                       DISMISSING APPEAL
                ____________________________________

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
                ____________________________________

       Torey Ray Mayberry, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition.   Mayberry also asks to proceed in forma pauperis.        We deny Mayberry’s

application for a certificate of appealability, deny his motion for leave to proceed on

appeal in forma pauperis as moot, and dismiss his appeal.

       Mayberry pled guilty to, among other things, various controlled substance

offenses, and the state court entered judgment against him on March 21, 2011. He never

moved to withdraw his guilty plea or to appeal. Mayberry did, however, file a number of

post-conviction letters and motions with the state court. All of his state motions for post-

conviction relief were denied. Mayberry eventually filed a habeas petition in federal
court, under 28 U.S.C. § 2254, on September 13, 2013. The magistrate recommended

dismissing Mayberry’s claims related to his underlying convictions as barred by the one-

year statute of limitations contained in 28 U.S.C. § 2244(d)(1). Mayberry objected to the

magistrate’s Report and Recommendation arguing, among other things, that the

magistrate used the wrong dates to calculate the tolling of the statute of limitations under

28 U.S.C. § 2244(d)(2). The district court, without acknowledging Mayberry’s specific

objections, adopted the magistrate’s Recommendation.

       In requesting we issue a COA, Mayberry argues his claims related to his

underlying convictions are timely for two reasons. First, he argues the magistrate used an

incorrect date to calculate the statutory tolling of his one-year statute of limitations under

28 U.S.C. § 2244, an error he claims the district court ignored. Second, he argues he is

entitled to equitable tolling for the period during which he was incarcerated at a jail with

no legal library.

       In determining whether to issue a COA when the district court denies a habeas

petition on procedural grounds, as it did here, we must decide whether the petitioner has

made a substantial showing “that jurists of reason would find it debatable 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, 484 (2000) (emphasis added). Because neither of

Mayberry’s procedural arguments presents a debatable question of whether the district

court’s procedural dismissal was correct, we decline to issue the COA Mayberry requests.



                                              -2-
       Mayberry is entitled to statutory tolling while “a properly filed application for

State post-conviction or other collateral review with respect to the pertinent judgment or

claim is pending.” 28 U.S.C.A. § 2254(d)(2). Mayberry’s statutory tolling argument

focuses on one particular application for State post-conviction relief. Mayberry’s original

federal habeas petition stated, and the magistrate accepted, that he had properly filed a

state application on March 21, 2012, which triggered a statutory tolling period. After the

magistrate nevertheless found his petition was time-barred under § 2244(d)(1), Mayberry

then argued he had been mistaken and objected to using the March 21 date. Instead, he

claimed he had the triggered statutory tolling period on January 20, 2012, when he filed a

letter with the state court which he claims requested the post-conviction ultimately sought

in his March 21 motion. Mayberry claimed that he was therefore entitled to an extra 60

days of tolling which, for procedural reasons not relevant here, might have ultimately

rendered his habeas petition timely. Mayberry included in the record a state docket sheet

which showed he had indeed filed a letter with the state court on January 20. The district

court did not address this objection when it adopted the magistrate’s Recommendation.

       Although the district court should have at least acknowledged Mayberry’s

objection on this point, this objection, in light of the record before us, is not enough to

create a reasonable debate over whether the district court’s procedural ruling was

ultimately correct. Mayberry never made his January 20 letter a part of the record. After

sua sponte requesting a copy of the letter from the state court and supplementing the

record on appeal with it, we understand why. Even liberally construed, the letter simply

requests documents, and nothing more. Because Mayberry’s January 20 letter cannot be

                                            -3-
construed as an application for State post-conviction or other collateral review, his

argument does not warrant any further statutory tolling.

       Mayberry’s second argument—that he had insufficient library access—must also

fail because allegations regarding insufficient library access, standing alone, do not

warrant equitable tolling. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)

(finding that lack of access to case law does not warrant equitable tolling).

       For these reasons, we DENY Mayberry’s motion for a certificate of appealability,

DENY his motion to proceed in forma pauperis as moot, and DISMISS his appeal.



                                           Entered for the Court,



                                           Bobby R. Baldock
                                           United States Circuit Judge




                                             -4-
