                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 14 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 BENITO JEROME BOWIE,

          Petitioner-Appellant,

 v.                                                           No. 99-6176
                                                              (W.D. Okla.)
 GARY GIBSON; DREW EDMONDSON,                          (D.Ct. No. CIV-98-1447-R)
 Attorney General of the State of Oklahoma,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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          This order and judgment is not binding precedent except under the doctrines of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 Benito Jerome Bowie, an Oklahoma state inmate appearing pro

se, appeals the district court’s decision dismissing, as untimely, his habeas corpus

petition filed pursuant to 28 U.S.C. § 2254. We deny Mr. Bowie's request for a

certificate of appealability and dismiss his appeal. 1



       On January 30, 1987, a jury convicted Mr. Bowie of first degree murder

and the trial court sentenced him to life in prison. The Oklahoma Court of

Criminal Appeals affirmed Mr. Bowie’s conviction July 15, 1991. On October

21, 1991, the state court formally denied Mr. Bowie’s petition for rehearing. Mr.

Bowie did not seek state post-conviction relief until April 1, 1998. The state

court denied his post-conviction application June 19, 1998, and the Oklahoma

Court of Criminal Appeals affirmed September 22, 1998.



       Mr. Bowie filed his federal habeas petition October 16, 1998, claiming

multiple errors by the state trial court. The federal district court assigned the

matter to a magistrate judge who recommended dismissing the petition as time-


       1
          The district court made no ruling on Mr. Bowie’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d
1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds by United States v.
Kunzman, 125 F.3d 1363,1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).


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barred. Specifically, the magistrate judge determined that because Mr. Bowie’s

conviction became final before the effective date of the Antiterrorism and

Effective Death Penalty Act, the limitation period for filing Mr. Bowie’s federal

habeas petition did not begin to run until April 24, 1996, and tolled one year later,

on April 23, 1997. The magistrate judge then determined the tolling provisions of

28 U.S.C. § 2244(d)(2) did not apply because Mr. Bowie filed his state post-

conviction application after the limitation period ended. Because Mr. Bowie did

not file his federal habeas petition until October 16, 1998 -- one and one-half

years after the limitation period -- the magistrate judge recommended the petition

be dismissed as untimely.



      The magistrate judge also carefully considered Mr. Bowie’s arguments for

equitably tolling the limitation period. In so doing, the magistrate judge rejected

Mr. Bowie’s contention that his two-year incarceration at the Oklahoma County

Detention Center, which contains no law library, somehow prevented him from

timely filing his petition. The magistrate judge determined that Mr. Bowie: (1)

failed to show he diligently pursued his federal claims while incarcerated for four

years at another facility; and (2) failed to show how the lack of a law library

affected his ability to timely file his petition, as required under Miller v. Marr,

141 F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998). The magistrate


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judge also rejected Mr. Bowie’s contention that both counsel retained by him

failed to timely file his petition. The magistrate judge first noted the evidence

presented did not establish actual retention of one attorney and then concluded

that even if Mr. Bowie retained both counsel and they failed to file his petition,

Mr. Bowie nevertheless had one year after he allegedly dismissed his last attorney

to timely file his petition. In any event, Mr. Bowie could not “sit idly by ...

knowing that no attorney was pursuing his case and still claim that he has

diligently pursued his claims.” Finally, the magistrate judge determined Mr.

Bowie’s claim of actual innocence lacked merit because the affidavits on which

he based his claim, and which allege that four prosecution witnesses offered false

testimony against him, lacked credibility, and even if true, were insufficient “to

show by a preponderance of the evidence that no reasonable juror would have

found him guilty of the crime charged.”



      In a thorough fifteen-page order, the district court adopted the magistrate

judge’s recommendation and dismissed Mr. Bowie’s habeas petition as untimely.

After examining the pleadings and affidavits filed by Mr. Bowie, the magistrate’s

recommendation, and the credibility and other findings of the state court, the

district court concluded that no circumstances warranted equitable tolling of the

limitation period. Specifically, with respect to Mr. Bowie’s claim of innocence,


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the district court determined no evidentiary hearing was necessary because the

state court performed a full and fair hearing on the credibility of the affidavits in

its post-conviction proceeding. In addition, the district court concluded the

affidavits on which Mr. Bowie relied lacked credibility because they: (1)

recanted previous trial testimony given under oath and subject to cross-

examination; (2) contained hearsay statements of individuals who did not testify

under oath as to the falsity of their prior testimony; (3) were deemed incredible by

the trial court which reviewed not only the affidavits, but transcripts of the sworn

testimony given before it in the state proceeding; and (4) were insufficient to

show by a preponderance of the evidence that no reasonable juror would have

found him guilty of the crime charged, especially in light of another inculpatory

witness who did not recant his trial testimony.



      On appeal, Mr. Bowie renews his request to equitably toll the limitation

period because: (1) the Oklahoma county jail lacked a law library, thereby

preventing him access to legal materials and the courts; and (2) both of his

counsel failed to file his petition. While Mr. Bowie does not expressly renew his

claim of actual innocence, he nevertheless attaches the affidavits supporting that

claim. Finally, Mr. Bowie raises the same issues presented in his petition




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concerning the merits of his case and alleging errors by the state court during his

trial.



         We review the district court’s factual findings for clear error and its legal

bases for dismissal of Mr. Bowie’s § 2254 petition de novo. See Rogers v.

Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999). In applying these standards, we

construe Mr. Bowie’s pro se pleadings liberally, holding them to a less stringent

standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991).



         We begin by noting the magistrate judge correctly determined the limitation

period for filing Mr. Bowie’s federal habeas petition did not begin to run until

April 24, 1996, and tolled one year later, on April 23, 1997. See 28 U.S.C.

§ 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). We

further agree the tolling provisions of 28 U.S.C. § 2244(d)(2) clearly do not apply

because Mr. Bowie filed his state post-conviction application after this limitation

period ended. See 28 U.S.C. § 2244(d)(2). (In accord with Allen v. Oklahoma,

No. 99-6033, 1999 WL 492804, at *1 (10th Cir. July 13, 1999) (unpublished

opinion); Hansell v. LeMaster, No. 98-2207, 1999 WL 258335, at *2 (10th Cir.

April 30, 1999) (unpublished opinion).) Because Mr. Bowie did not file his


                                            -6-
federal habeas petition until one and one-half years after the limitation period, the

district court properly dismissed the petition as untimely.



      As to Mr. Bowie’s request for equitable tolling of the statutory limitation

period, we agree, for substantially the same reasons set forth in the district court’s

Order of April 13, 1999, and the magistrate judge’s Report and Recommendation

of January 20, 1999, that tolling is inappropriate under the circumstances of this

case. Finding his petition untimely, we decline to address the merits of the

remaining issues raised in Mr. Bowie’s petition and on appeal.



      Thus, under the circumstances presented and after a careful review of the

record, we determine Mr. Bowie fails to make a substantial showing of the denial

of a constitutional right necessary for issuing a certificate of appealability. 28

U.S.C. § 2253(c)(2). Accordingly, we deny Mr. Bowie’s request for a certificate

of appealability and DISMISS the appeal.


                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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