                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   JUL 7 2003
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 ARTHUR JOHN ALLOWAY,

           Petitioner-Appellant,
 v.                                                            No. 03-5057
 LENORA JORDAN; ATTORNEY                                (D.C. No. 02-CV-524-EA)
 GENERAL OF THE STATE OF                                    (N.D. Oklahoma)
 OKLAHOMA,

           Respondents-Appellees.


                                   ORDER AND JUDGMENT*


Before KELLY, BRISCOE 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.

       Petitioner Arthur Alloway, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C.



       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
§ 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, grant a

COA, and reverse and remand for further proceedings.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 123 S. Ct. 1029, 1039

(2003). A COA can issue only “if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El, 123 S. Ct. at 1034.

After careful review of the record, we conclude the requirements for issuance of a COA

have been met.

       In May 1999, Alloway was convicted by jury of assault and battery with a deadly

weapon and sexual battery and was sentenced to a term of imprisonment of 15 years. His

convictions and sentence were affirmed on direct appeal. He did not seek certiorari

review by the United States Supreme Court or state post-conviction relief.

       Alloway filed his § 2254 habeas petition on July 3, 2002. Respondents filed a

motion to dismiss the petition, asserting it was barred by the one-year statute of

limitations set forth in 28 U.S.C. § 2244(d)(1). In response, Alloway filed an “objection”

and argued the one-year statute of limitations should be equitably tolled because he was

actually innocent of the offenses and because there was a “medical impediment such as

prevented him from timely entering his writ.” ROA Doc. 13 at 2. He asserted that he


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suffered from hepatitis C and liver cirrhosis and that he was “physically disabled” and

“unable to pursue the writ during the statutory [filing] period.” Id. at 10. Alloway further

asserted that he had been deprived of medication necessary to treat the diseases, had been

forced to file and pursue a federal civil rights action to obtain proper medical treatment,

and had obtained preliminary injunctive relief in that action.

       The district court granted respondents’ motion to dismiss. The court concluded

that Alloway’s convictions became final and the one-year limitations period began to run

on October 9, 2000, following expiration of the 90-day period for filing for certiorari.

The court further concluded that, “absent a tolling event, a federal petition for writ of

habeas corpus filed after October 9, 2001, would be untimely.” ROA Doc. 17 at 3. The

court concluded that “claims of actual innocence alone cannot serve to toll the limitations

period.” Id. at 3-4. The court rejected Alloway’s assertion that he was “too ill to prepare

and file a timely habeas corpus petition during the same period of time” that he filed and

pursued his federal civil rights action. Id. at 6.

       In determining whether Alloway is entitled to a COA, we agree that the timeliness

of his § 2254 petition hinges on the merits of his equitable tolling arguments. It is well

established that equitable tolling of § 2244(d)(1)’s one-year statute of limitations is

available “only in rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522,

527 (10th Cir. 2003). For example, “[e]quitable tolling would be appropriate . . . when a

prisoner is actually innocent” or “when an adversary’s conduct – or other uncontrollable


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circumstances – prevents a prisoner from timely filing.” Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000).

         In rejecting Alloway’s equitable tolling arguments and granting respondents’

motion to dismiss, it is apparent that the district court considered materials outside the

petition. In addition to reviewing the documents submitted by Alloway with his objection

to the motion to dismiss, it appears the court reviewed the file from his civil rights action.

In other words, the district court effectively converted the motion to dismiss into a motion

for summary judgment. Although permissible, the district court must first notify the

parties of the conversion and provide an opportunity to present all materials pertinent to

such a motion under Federal Rule of Civil Procedure 56. See Brown v. Zavaras, 63 F.3d

967, 969 (10th Cir. 1995). By failing to do so, the court committed what we generally

consider to be reversible error. See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.

1991).

         After reviewing the record, we conclude it is impossible to affirm the dismissal

without referring to matters outside the petition. Although we share the district court’s

skepticism that Alloway’s physical condition effectively prevented him from filing a

timely habeas petition yet allowed him to file and pursue a civil rights action, we note that

some of the documents submitted by Alloway with his objection to the motion to dismiss

arguably support his allegation that prison officials deprived him of proper medical

treatment during the statutory filing period. We therefore conclude we should remand to


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the district court and allow the court to notify the parties of its intent to convert the

motion to dismiss into a motion for summary judgment and to provide the parties with an

opportunity to submit materials in accordance with Federal Rule of Civil Procedure 56.

       Having called into doubt the propriety of the district court’s procedural ruling, the

only remaining hurdle for issuance of a COA is whether Alloway’s petition stated one or

more debatably valid claims of the denial of a constitutional right. See York, 314 F.3d at

528. After “quickly review[ing] the petition, we conclude Alloway’s petition satisfies

this standard. See id.

       Alloway’s application for a COA is GRANTED. The judgment of the district

court is REVERSED and this matter is REMANDED to the district court for further

proceedings as set forth in this order.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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