                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     SEP 19 2001
                          FOR THE TENTH CIRCUIT
                                                                PATRICK FISHER
                                                                         Clerk

 DON WESTLY ROE, JR.,

              Petitioner - Appellant,

 v.                                                      No. 01-6176
                                                      (No. 01-CV-112-C)
 H. N. SCOTT,                                          (W.D. Oklahoma)

              Respondent - Appellee.


                           ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.


      Pro se petitioner Don Westly Roe, Jr., an Oklahoma state prisoner, seeks a

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge

the district court’s dismissal of his petition for a writ of habeas corpus as time-

barred under 28 U.S.C. § 2244(d). We conclude that petitioner has not

demonstrated extraordinary circumstances warranting equitable tolling of the

period of limitation, and we deny COA.


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
        Petitioner was charged in Oklahoma state court with possession of

contraband in a penal institution. On August 13, 1991, after entering a plea of

nolo contendere, petitioner was sentenced to a five-year term of imprisonment.

He did not appeal the judgment. Petitioner had previously been found guilty in a

separate prison disciplinary proceeding for the same conduct.

        Roe filed an application for post-conviction relief in state court on August

21, 2000, alleging a violation of the Double Jeopardy Clause. The application

was denied, and that denial was affirmed by the Oklahoma Court of Criminal

Appeals on November 30, 2000. Petitioner’s federal habeas application, which

was signed December 6, 2000, was docketed by the district court on January 8,

2001.

        Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), prisoners generally have one year from the date on which their

convictions become final to petition for federal habeas corpus relief.   28 U.S.C.

§ 2244(d)(1). A conviction becomes final “by the conclusion of direct review or

the expiration of the time for seeking such review.” § 2244(d)(1)(A). The one-

year period of limitation is subject to equitable tolling in extraordinary

circumstances.     See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). “In the

final analysis, [petitioner must show] the steps he took to diligently pursue his

federal claims.”    Id. (citation omitted).


                                              -2-
       Under AEDPA, “prisoners whose convictions became final on or before

April 24, 1996 must file their [habeas] motions before April 24, 1997.”        United

States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). Although the period of

limitation is tolled for the “time during which a properly filed application for

State post-conviction or other collateral review . . . is pending,” 28 U.S.C.

§ 2244(d)(2), Roe’s state post-conviction petition was not filed until August 21,

2000, well after the period of limitation expired.

       In his filings below, petitioner argued that he was not aware of his right to

pursue his double jeopardy claim until a law clerk at his correctional facility

informed him of the Oklahoma Court of Criminal Appeals’ decision in           Oklahoma

v. Campbell , 965 P.2d 991 (Okla. Crim. App. 1998). We find this argument

unpersuasive. Roe’s ignorance of the law is not an extraordinary circumstance

warranting equitable tolling.   Miller , 141 F.3d at 978.   1
                                                                Furthermore, we agree

with the district court that petitioner has not set forth facts demonstrating actual

innocence. See Schlup v. Delo , 513 U.S. 298, 326–27 (1995) (recognizing that a

petitioner may assert actual innocence to avoid a procedural bar to the

consideration of the merits of his constitutional claims).

       The application for COA is    DENIED , and the matter is       DISMISSED .


       1
        Even if we were to restart the limitation period on the day Campbell was
filed, August 18, 1998, petitioner’s federal habeas application, which was signed
on December 6, 2000, would be time-barred.

                                           -3-
The mandate shall issue forthwith.



                                       Entered for the Court,



                                       Carlos F. Lucero
                                       Circuit Judge




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