                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 20 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                     Clerk

 MARK E. LEWIS,

          Petitioner - Appellant,
 v.                                                       No. 99-5167
                                                    (D.C. No. 98-CV-715-K)
 BOBBY BOONE, Warden, Mack                       (Northern District of Oklahoma)
 Alford Correctional Center,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      State prisoner Mark E. Lewis, appearing pro se, requests a certificate of

appealability to contest the district court’s denial of his petition for a writ of

habeas corpus. The district court dismissed his petition as untimely pursuant to

28 U.S.C. § 2244(d). Because Lewis fails to make a substantial showing of the




      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
denial of a constitutional right, we decline to issue a certificate of appealability.

See 28 U.S.C. § 2253(c).

      A jury convicted Lewis of four counts of first-degree rape and one count

each of forcible sodomy and larceny from a house. The Oklahoma Court of

Criminal Appeals affirmed his convictions on March 25, 1993, and therefore they

became final on or about June 24, 1993, following the expiration of the 90-day

time period for filing a petition for writ of certiorari in the United States Supreme

Court. See 28 U.S.C. § 2244(d)(1)(A).

      Approximately four years later, Lewis filed a petition for post-conviction

relief. The precise date of this filing is uncertain from the record before us.

However, it is a matter of record that the Tulsa County District Court denied post-

conviction relief on October 20, 1997. It appears the Oklahoma Court of

Criminal Appeals rejected as untimely Lewis’s appeal of that denial on January

28, 1998.

      On September 18, 1998, Lewis filed his application for federal habeas

relief. The district court dismissed it as untimely pursuant to 28 U.S.C.

§ 2244(d). This provision of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), effective April 24, 1996, provides that “[a] 1-year period of

limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). It


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also provides for tolling of the time limit while “a properly filed application for

State post-conviction or other collateral review” is pending in state court. 28

U.S.C. § 2244(d)(2).

      To avoid retroactivity problems, we have construed the limitation period of

§ 2244(d) to run from AEDPA’s effective date, April 24, 1996, in the case of

prisoners whose convictions became final prior to that date. See Hoggro v.

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

recognized that the state court tolling provision of § 2244(d)(2) applies to this

one-year grace period. See id. at 1226.

      Lewis challenges the district court’s finding of untimeliness. First, he

asserts in his brief on appeal that he submitted his request for state post-

conviction relief to the prison mail system on April 22, 1997, one day before the

expiration of the AEDPA limitations grace period. Under the prison mailbox

rule, he argues, this began tolling of the limitations period pursuant to 28 U.S.C.

§ 2244(d)(2). The one-year grace period for inmates whose convictions became

final prior to AEDPA’s effective date is subject to tolling pursuant to

§ 2244(d)(2). See Hoggro, 150 F.3d at 1226. However, even were Lewis’s

unsupported assertions of filing his state post-conviction application prior to




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April 23, 1997, correct, his habeas petition would still be untimely. 1 Such filing

would leave only one day of the limitations period remaining after denial of state

post-conviction relief. It appears Lewis waited nearly another eleven months

from the denial of his state post-conviction application in October 1997 before

filing of his federal habeas petition in September 1998. Even if his state appeal

of the denial of post-conviction relief (which the OCCA apparently dismissed as

untimely and therefore cannot constitute a “properly filed application” under 28

U.S.C. § 2244(d)(2)) had been properly filed and therefore tolled the AEDPA

limitations period, Lewis’s federal habeas petition would still be untimely,

because some eight months lapsed between the OCCA’s ruling in January 1998

and Lewis’s habeas filing in September 1998.

      Lewis asserts that an unconstitutional state-created impediment to filing his

application prevented him from filing, thereby triggering a later onset of the

limitations period pursuant to 28 U.S.C. § 2244(d)(1)(A). This alleged violation

apparently refers to the right of access to courts discussed in Bounds v. Smith,

430 U.S. 817, 821-22 (1977), modified by Lewis v. Casey, 518 U.S. 343, 351-55


      1
         We have applied the “prison mailbox rule” of Houston v. Lack, 487 U.S.
266, 270-72 (1988), to assess the timeliness of federal habeas filings under the
AEDPA limitations period. See United States v. Gray, 182 F.3d 762, 764 (10th
Cir. 1999). Because it is irrelevant to our resolution of this matter, we need not
resolve the application of the prison mailbox rule to the tolling provision of 28
U.S.C. § 2244(d)(2), but the logic of Houston and Gray strongly suggests that the
rule necessarily applies.

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(1996). Prisoners do have a constitutional right of access to the courts to

challenge the validity of their sentence, and part of this constitutional right is a

requirement that prison officials assist inmates in filing nonfrivolous legal claims

“by providing prisoners with adequate law libraries or adequate assistance from

persons trained in the law.” Lewis, 518 U.S. at 346 (quoting Bounds, 430 U.S. at

828); see also Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per

curiam) (applying Lewis and Bounds to a claim of inadequate access to a prison

law library).

      Lewis concedes that he had assistance from inmate legal assistants, but

argues that they erroneously informed him, contrary to the plain language of 28

U.S.C. § 2244(d), that the one-year limitations period for federal habeas petitions

does not begin to run until after resolution of state post-conviction proceedings.

Such erroneous assistance does not necessarily rise to the level of a denial of

access to courts as contemplated by Lewis. To show a Bounds violation, an

inmate must “demonstrate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal claim. . . . for example,

that a complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison’s legal assistance

facilities, he could not have known.” Lewis, 518 U.S. at 351 (emphasis added).

Lewis does not allege that the prison’s law library lacked a copy of 28 U.S.C.


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§ 2244 and therefore could not have known of the deadline. Bounds and Lewis

guarantee only an adequate level of library facilities and/or legal assistance; the

Supreme Court has never held that they represent a guarantee against errors by

inmate legal assistants when library facilities are otherwise available. Therefore,

Lewis’s allegations do not rise to the level of an unconstitutional state-created

impediment so as to invoke the later onset of the limitations period provided for

by 28 U.S.C. § 2244(d)(1)(A). Moreover, Lewis’s claim of ignorance of the

§ 2244 deadline does not reflect a state-created impediment, as contemplated by

§ 2244(d)(1)(A), and his alleged ignorance of the deadline is therefore more

appropriately addressed in our consideration of equitable tolling than as grounds

for delayed onset of the limitations period.

      Furthermore, the record indicates that the prison’s allegedly inadequate

legal assistance did not prevent Lewis from filing an unrelated state mandamus

action on April 18, 1996. His filing of this action strongly suggests there was no

impediment to the exhaustion of his state remedies and to the filing of a federal

habeas petition within the limitations period. The filing of the mandamus action

also appears to refute Lewis’s assertion in his brief on appeal that he was in

continuous segregative isolation from February 1992 through September 1997,

resulting in a lack of access to legal materials and thereby the courts.




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      Insofar as Lewis’s submission to this court can be read as a request for

equitable tolling under Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), we

see no grounds for the exercise of our equitable power to toll the AEDPA

limitations period. The salient fact in this case is that Lewis delayed some four

years in filing his state post-conviction application. His lack of diligence

therefore precludes equitable tolling, as noted by the district court. Cf. Lewis,

518 U.S. at 351 (stating that an inmate must “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered his efforts to

pursue a legal claim”). Considering that a non-capital federal habeas petitioner

does not enjoy the same constitutional right to counsel in seeking habeas relief as

he does on direct appeal, we cannot conclude that alleged reliance on erroneous

advice from an inmate legal assistant constitutes cause and prejudice sufficient to

compel the exercise of our equitable tolling power. Cf. Rodriguez v. Maynard,

948 F.2d 684, 688 (10th Cir. 1991) (holding that “pro se status and . . .

corresponding lack of awareness and training on legal issues do not constitute

adequate cause” for failure to raise an issue in a previous habeas petition).

      The application for a certificate of appealability is DENIED; this matter is

DISMISSED. The mandate shall issue forthwith.




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ENTERED FOR THE COURT



Carlos F. Lucero
Circuit Judge




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