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

                                   TENTH CIRCUIT                             November 20, 2018

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 LEON MARKEL WINSTON,

               Petitioner - Appellant,

 v.                                                          No. 18-7038
                                                (D.C. No. 6:17-CV-00290-RAW-KEW)
 JOE M. ALLBAUGH,                                            (E.D. Okla.)

               Respondent - Appellee.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before HARTZ, McHUGH, and CARSON, Circuit Judges.



       Leon Winston, an Oklahoma state prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the dismissal of his petition for writ of habeas corpus.

The district court denied his petition as untimely. We deny the COA and dismiss the

appeal.




       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. Winston appears pro se “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                    I.     ANALYSIS

       Mr. Winston is serving a life sentence without the possibility of parole for First

Degree Murder. Mr. Winston filed a timely appeal of his conviction in the Oklahoma

Court of Criminal Appeals (“OCCA”), and the OCCA affirmed.

       Mr. Winston then filed a petition for a writ of habeas corpus on July 26, 2017, in

federal court pursuant to 28 U.S.C. § 2254. Mr. Winston did not argue his petition fell

within the statute of limitations; however, he alleged equitable tolling should apply

because the prison is on lockdown for about 300 days per year during which time he does

not have access to the law library. The district court judge dismissed Mr. Winston’s

petition, ruling it time-barred under 28 U.S.C. § 2244(d) of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). The district court concluded

Mr. Winston’s lack of access to the law library did not constitute a rare and exceptional

circumstance that warrants equitable tolling and it denied a COA on the issue.

       Mr. Winston filed an appeal of the district court’s dismissal of his petition for a

writ of habeas corpus. Under AEDPA, we must treat his appeal “as an application for a

COA.” Slack v. McDaniel, 529 U.S. 473, 483 (2000). To obtain a COA, Mr. Winston

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). And where, as here, the district court disposed of a habeas action as time-

barred, a petitioner must also show “that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Mr.

Winston cannot make that showing.



                                                 2
       Section 2244(d)’s one-year statute of limitation for filing a federal habeas petition

is subject to equitable tolling only in “rare and exceptional circumstances.” Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806,

811 (5th Cir. 1998)). “[T]his equitable remedy is only available when an inmate

diligently pursues his claims and demonstrates that the failure to timely file was caused

by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000). Therefore, the question here is whether reasonable jurists could

debate whether prison lockdowns are rare and exceptional circumstances that warrant

equitable tolling.

        In the past, we have found exceptional circumstances exist “when a prisoner is

actually innocent, when an adversary’s conduct—or other uncontrollable

circumstances—prevents a prisoner from timely filing, or when a prisoner actively

pursues judicial remedies but files a deficient pleading during the statutory period.”

Gibson, 232 F.3d at 808 (citations omitted). We have also held that “a claim of

insufficient access to relevant law . . . is not enough to support equitable tolling.” Id.

“The mere fact of a prison lockdown, moreover, does not qualify as extraordinary absent

some additional showing that the circumstances prevented him from timely filing his

habeas petition.” Phares v. Jones, 470 F. App’x 718, 719 (10th Cir. 2012).

       While prison lockdowns are uncontrollable, they merely impede access to the

relevant law, which we have continuously ruled insufficient to warrant equitable tolling.

See, e.g., Bickham v. Allbaugh, 728 F. App’x 869, 871 (10th Cir. 2018); Jones v. Taylor,

484 F. App’x 241, 242–43 (10th Cir. 2012); Sandoval v. Jones, 447 F. App’x 1, 4 (10th

                                                  3
Cir. 2011). Access to the law is merely a “means for ensuring ‘a reasonably adequate

opportunity to present claimed violations of fundamental constitutional rights to the

courts.’” Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting Bounds v. Smith, 430 U.S.

817, 825 (1977)). Temporary absence of that means does not automatically warrant

equitable tolling. Additionally, nothing in the record demonstrates Mr. Winston has

diligently pursued his claim.

       The district court’s conclusion that equitable tolling is not justified by prison

lockdowns in the absence of a showing of additional circumstances that prevented timely

filing is not subject to debate among reasonable jurists.

                                  II.    CONCLUSION

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.2

                                               Entered for the Court


                                               Carolyn B. McHugh
                                               Circuit Judge




       2
         Additionally, we deny as moot Mr. Winston’s motion for an evidentiary hearing
on the merits of Mr. Winston’s constitutional claims. See United States v. Arrowgarp,
558 F. App’x 824, 826 (10th Cir. 2014) (affirming denial of an evidentiary hearing on
merits issue as moot when equitable tolling did not apply).
                                                  4
