                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           MAY 24 2002
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 TOMMY LEE GREEN,

               Petitioner - Appellant,

          v.                                            No. 02-6019
                                                 (D. C. No. 01-CIV-1357-L)
 GLYNN BOOHER, Warden,                                (W.D. Oklahoma)

               Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

      Petitioner Tommy Lee Green, appearing pro se, seeks a certificate of

appealability (COA) to pursue his appeal of the district court’s dismissal of his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Determining that the district court correctly dismissed the petition as untimely, we

deny his application and dismiss the appeal.

      In 1996, Mr. Green pleaded guilty to and was sentenced for seven drug and

firearms counts. He did not appeal. On August 17, 1999, the state filed a motion

for a nunc pro tunc order, requesting correction of a clerical error in the judgment

and sentence. On January 12, 2001, Mr. Green filed an application for post-

conviction relief in the District Court of Oklahoma County. The court denied the

application, and this denial was affirmed on appeal on July 5, 2001. On August

27, 2001, Mr. Green filed his application for a writ of habeas corpus, arguing,

along with several claims relating to the original proceedings, that the nunc pro

tunc order violated his constitutional rights. Respondent moved for dismissal of

the petition as untimely. The district court, adopting the magistrate’s report and

recommendation, denied the application as untimely.

      Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), a one-

year limitation period applies to an application for a writ of habeas corpus. 28

U.S.C. § 2244(d)(1). In this case, the limitation period started to run on “the date

on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” Id. § 2244(d)(1)(D). Mr.

Green states that he learned of the nunc pro tunc order on September 1, 1999, and




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we therefore treat that as the applicable date for purposes of this appeal. 1 Thus,

absent tolling, the limitation period expired on September 1, 2000, several months

before Mr. Green sought post-conviction relief in state court.

      A properly filed application for post-conviction review in state court tolls

the limitation period. 28 U.S.C. § 2244(d)(2). However, Mr. Green’s state

application could not toll the federal limitation period, because he did not file it

until after the one-year period had expired.

      Mr. Green argues that the limitation period should be equitably tolled,

because he was pursuing administrative remedies and was therefore prevented

from pursuing his federal claims. Equitable tolling applies “only in rare and

exceptional circumstances,” such as actual innocence or uncontrollable

circumstances that prevent timely filing. Gibson v. Klinger, 232 F.3d 799, 808

(10th Cir. 2000) (internal quotation marks and citation omitted). “Moreover, a

petitioner must diligently pursue his federal habeas claims; a claim of insufficient

access to relevant law, such as AEDPA, is not enough to support equitable

tolling.” Id.

      Mr. Green cannot satisfy the standard for equitable tolling. While AEPDA

requires exhaustion of state judicial remedies, 28 U.S.C. § 2254(b)(1)(A), it does


      1
        This is the latest date on which the limitation period may have begun. As
the magistrate noted, the date may in fact be earlier for some of petitioner’s
claims.

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not require exhaustion of state administrative remedies. Nor does Oklahoma law

require exhaustion of administrative remedies prior to filing a challenge to the

validity of a conviction or sentence in state court. Okla. Stat. tit. 22, §§ 1080-88

(Post-Conviction Procedure Act).

      For these reasons, we hold that the district court properly dismissed the

petition for a writ of habeas corpus as untimely.

      In order to be entitled to a COA when a petition for habeas corpus has been

dismissed on procedural grounds, a petitioner must show “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). AEDPA’s statute of limitations is clear as applied to the facts of

this case, and Mr. Green has therefore failed to satisfy this standard.

      We therefore DENY the application for a COA and DISMISS the appeal.

      Petitioner’s request to proceed   in forma pauperis is GRANTED.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge




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