                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            DEC 10 2004
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 WADDELL WARREN,

        Petitioner - Appellant,
                                                        No. 04-3292
 vs.                                             (D.C. No. 04-CV-3119-SAC)
                                                          (D. Kan.)
 LOUIS BRUCE, Warden, Hutchinson
 Correctional Facility; ATTORNEY
 GENERAL OF THE STATE OF
 KANSAS,

        Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


       Mr. Warren, a state inmate appearing pro se, filed an application for

certificate of appealability (“COA”) seeking to appeal the district court’s order

dismissing his habeas action as barred by the one-year limitation period in 28

U.S.C. § 2244(d)(1). In addition to the merits, Mr. Warren argues (1) that the

limitations period has not run because he was required to exhaust his state court

remedies and the time he spent seeking state post-conviction relief was statutorily

tolled, and (2) he is entitled to equitable tolling because he is actually innocent.

       For this court to have jurisdiction over Mr. Warren’s appeal, we must grant
a COA. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Because the district court’s dismissal was based on procedural grounds,

Mr. Warren must demonstrate that reasonable jurists would find it debatable

whether the district court’s procedural ruling was correct, and whether his habeas

petition makes a substantial showing of the denial of a constitutional right. Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which

became effective on April 24, 1996, provides a one-year period of limitation for

state prisoners to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1).

The time generally starts to run when the judgment of conviction becomes final.

Id. However, for convictions that were finalized prior to the enactment of

AEDPA, the time period runs from the Act’s effective date. Hoggro v. Boone,

150 F.3d 1223, 1225-26 (10th Cir. 1998).

      In 1991, Mr. Warren was convicted in Kansas state court for aiding and

abetting aggravated robbery, aiding and abetting aggravated battery, and

conspiracy to commit robbery. He was then sentenced to a controlling term of 45

years imprisonment. On December 11, 1992, the Kansas Supreme Court reversed

the aiding and abetting battery conviction and affirmed the others. State v.

Warren, 843 P.2d 224, 236 (Kan. 1992) Mr. Warren did not seek review of his

conviction with the United States Supreme Court. Thus, his conviction became


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final well before the enactment of AEDPA, see Locke v. Saffle, 237 F.3d 1269,

1272 (10th Cir. 2001), and the one-year period did not start running until April

24, 1996.

      AEDPA statutorily tolls the time when a proper post-conviction claim or

other collateral proceeding relating to the relevant conviction is pending. 28

U.S.C. § 2244(d)(2). However, this provision fails to preserve Mr. Warren’s

claim. Starting in January 1997, nearly nine months after the time period began

to run, Mr. Warren began seeking state post-conviction relief and the time period

was essentially tolled until April 2000. During the remainder of 2000 and into

2001, Mr. Warren made two motions to correct his sentence, and the time was

again periodically tolled. However, from early February 2001 until mid February

2002, when Mr. Warren filed his third application for post-conviction relief, the

time continually ran. And after the third application was final in July 2003, the

time ran again until April 2004 when the present habeas petition was filed. Thus,

it is clear Mr. Warren did not comply with the one-year limitation, even

considering statutory tolling. Mr. Warren appears to argue that all the time from

when he began seeking state court relief until he fully exhausted his state

remedies should have been statutorily tolled; however, this is not the rule.

Statutory tolling only occurs when a “properly filed application for State post-

conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).


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      Mr. Warren has also failed to establish that he is entitled to equitable

tolling. Equitable tolling is appropriate in cases of actual innocence. Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976,

978 (10th Cir. 1998)). Mr. Warren argues he is actually innocent because the

charging document defectively identified the charges against him. However, this

suggests a “mere legal insufficiency” rather than factual innocence. Bousley v.

United States, 523 U.S. 614, 623 (1998).

      As such, we conclude the district court’s dismissal of Mr. Warren’s petition

for failure to file within the limitations period, R. Doc. 15, is not reasonably

debatable.

      We DENY the request for COA and DISMISS the appeal.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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