                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 7 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JEFFERY DWAYNE HOLLIE,

          Petitioner-Appellant,

 v.                                                        No. 00-6269
                                                          (W.D. Okla.)
 GLYNN BOOHER, Warden;                              (D.Ct. No. 00-CV-563-R)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            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 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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Jeffery Dwayne Hollie appeals the district court’s decision

denying his 28 U.S.C. § 2254 petition. We deny Mr. Hollie’s request for a

certificate of appealability and dismiss the appeal.



      In his § 2254 petition, Mr. Hollie sought habeas corpus relief from his state

conviction for “child stealing” in which he received an eighteen-month suspended

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

a Report and Recommendation, determining Mr. Hollie fully discharged his

sentence for that conviction and therefore, failed to meet the “in custody”

requirement for habeas corpus jurisdiction.



      Nevertheless, in liberally construing Mr. Hollie’s petition and to avoid

automatic dismissal for lack of jurisdiction, the magistrate judge construed Mr.

Hollie’s petition as challenging his current incarceration for writing bogus checks

as improperly enhanced by his child stealing conviction. After examining the

procedural history of Mr. Hollie’s state actions and the timing for filing his

petition, the magistrate judge determined Mr. Hollie’s federal petition “was filed

well beyond the expiration of the one-year limitation period,” even if Mr. Hollie’s




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state actions were applied for the purpose of tolling the limitation period. 1 The

magistrate judge further concluded equitable tolling was not applicable because

Mr. Hollie had “neither asserted that he is innocent of the crime for which he was

convicted ... [i.e., the bogus check conviction] or that he was, or is, incompetent.”

The magistrate judge further found Mr. Hollie had not “alleged or set forth any

‘extraordinary circumstances’ outside his control that made it impossible for him

to file his petition on time” or that he diligently pursued his federal habeas claim.

For these reasons, the magistrate judge recommended denying Mr. Hollie’s

petition as untimely filed. After reviewing Mr. Hollie’s objections thereto, the

district court adopted the Report and Recommendation in its entirety and denied

Mr. Hollie’s petition.



      On appeal, Mr. Hollie asserts “extraordinary circumstances” existed for the

untimely filing of his petition, but in support of this assertion, simply argues the

merits of his child stealing case. Furthermore, for the first time on appeal, Mr.

Hollie states he is innocent of child stealing.




      1
        The magistrate judge determined that even if Mr. Hollie’s state motion to vacate
judgment and sentence was considered, it would only toll the limitation period for one
day because the state judge denied the motion on the same day Mr. Hollie filed it.


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      We review the legal basis for the district court’s dismissal of Mr. Hollie’s

§ 2254 petition de novo. See Hatch v. Oklahoma, 58 F.3d 1447, 1453 (10th Cir.

1995), cert. denied, 517 U.S. 1235 (1996). We have held that the statute of

limitation contained in 28 U.S.C. § 2244(d) is not jurisdictional and may be

subject to equitable tolling where extraordinary circumstances beyond the

prisoner’s control prevent him from timely filing his federal petition, but the

prisoner must demonstrate he has diligently pursued his claims to avail himself of

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

denied, 525 U.S. 891 (1998). In addition, we recognize the “ends of justice”

require us to entertain habeas petitions “where the prisoner supplements his

constitutional claim with a colorable showing of factual innocence.” Kuhlmann v.

Wilson, 477 U.S. 436, 454 (1986). However, in order to make such a showing,

the prisoner must provide evidentiary proof. Id. In other words, Mr. Hollie must

identify evidence affirmatively demonstrating his innocence. See Schlup v. Delo,

513 U.S. 298, 327 (1995).



      In this case, even if we considered Mr. Hollie’s innocence claim for the

first time on appeal, he has done nothing more than make repetitive and

conclusory statements of his innocence which are simply insufficient to make a

colorable showing of factual innocence. As to any extraordinary circumstances


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which might excuse Mr. Hollie’s untimely filing of his federal petition, he has

presented none, including no showing that he diligently pursued his claims.



      In order for this court to grant a certificate of appealability, Mr. Hollie

must make a substantial showing of the denial of a constitutional right as required

under 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on

procedural grounds, as it did here, without reaching the underlying constitutional

claim, “a [certificate of appealability] should issue when the prisoner shows, at

least, 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). In this case, it is clearly not

debatable whether the district court made the correct procedural ruling.



      Accordingly, for the reasons stated herein, and for substantially the same

reasons set forth in the district court’s July 19, 2000 Order, and the magistrate




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judge’s June 27, 2000 Report and Recommendation, we deny Mr. Hollie’s request

for a certificate of appealability and DISMISS his appeal. We also deny Mr.

Hollie’s request to proceed in forma pauperis on appeal.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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