                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS August 3, 2006

                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



 ANDREW GREEN, JR.,

          Petitioner-A ppellant,
                                                        No. 06-3118
 v.
                                                 (D.C. No. 05-CV-3450-SAC)
                                                           (Kansas)
 STATE OF KAN SAS; PHIL KLINE.
 Attorney General of Kansas,

          Respondents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.


      Andrew Green, Jr., a Kansas state prisoner appearing pro se, 1 seeks a

certificate of appealability (COA) to challenge the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition as time-barred. 2 See 28 U.S.C. § 2253(c)(1)(A )



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        Because he is proceeding pro se, we review M r. Green’s pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
      2
       The district court denied M r. Green’s application for a COA, but granted
his motion to proceed in form a pauperis on appeal.
(prisoner must obtain a COA before appealing the dismissal of a § 2254 petition).

W here the district court dismisses a petition on procedural grounds, the inmate

must show in his application for a COA “that it is reasonably debatable whether

(1) the petition states a valid claim of the denial of a constitutional right, and (2)

the district court’s procedural ruling is correct.” Dulworth v. Evans, 442 F.3d

1265, 1266 (10th Cir. 2006), citing Slack v. M cDaniel, 529 U.S. 473, 483-84

(2000). B ecause w e conclude the district court’s procedural ruling is correct, w e

deny M r. Green’s application for a COA and dismiss his appeal.

      M r. Green was convicted of first-degree murder and aggravated battery

arising from a prison riot. On July 12, 1996, those convictions were affirmed.

State v. Green, 920 P.2d 414 (Kan. 1996). In 2003, M r. Green filed a motion for

postconviction relief alleging ineffective assistance of counsel. That motion was

denied by the trial court following an evidentiary hearing, and affirmed in M ay

2005. Green v. State, 110 P.3d 1053 (K an. App. 2005).

      M r. Green filed a § 2254 habeas petition in district court on November 30,

2005, claiming his trial counsel was ineffective. The district court ordered M r.

Green to show cause why his petition should not be dismissed for having been

filed outside the one-year period of limitation set forth in 28 U.S.C. § 2244(d)(1).

M r. Green in his response did not deny that his petition was facially untimely, but

asserted the one-year period was subject to equitable tolling. Specifically, he

claimed that “[f]rom M ay 22, 1993 until Sept.2003 I was in Administrative

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Segregation and again from Feb. 6, 2004 until present.” Rec. at 5. Due to this

confinement he said he was unable to visit the prison’s law library and had to

request legal materials through a cumbersome and time-consuming process. He

further claimed prison staff were impervious to his requests for timely delivery

and all steps of the process were “done at [their] convenience.” Id. M oreover,

because his underlying conviction was for the murder and assault of corrections

officers, M r. Green implied that prison staff may have dragged their feet more

than usual in complying with his requests.

       M r. Green also asserted his petition was untimely because he had difficulty

obtaining legal advice in filing his state motion for postconviction relief and his §

2254 petition. As evidence of his efforts to obtain advice, he attached two letters

to his show cause response. The first letter, dated July 16, 1997, from the office

of the state’s chief appellate defender recommends M r. Green contact Legal

Services for Prisoners for help filing postconviction motions. The second letter,

dated M arch 1, 1999, from an attorney with Legal Services for Prisoners states

that his office will review completed forms for postconviction relief, but will not

assist a prisoner in filling them out. The letter also advises M r. Green how to

obtain trial transcripts.

       The district court dismissed M r. Green’s § 2254 habeas petition as time-

barred. In so doing, the court noted that M r. Green failed to seek any form of

postconviction relief until 2003, by which time the one-year period of limitation

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for filing a federal habeas petition had long since expired. The court further held

that the one-year period was not subject to equitable tolling because M r. Green

failed to show that extraordinary circumstances prevented him from filing on time

or that he pursued his habeas claims diligently. M r. Green challenges these

findings.

      As already noted, § 2244(d)(1) states 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). In the

present case, the one-year period began to run on October 12, 1996, after the

Kansas Supreme Court affirmed M r. Green’s conviction on July 12, 1996, and the

three-month period for seeking a writ of certiorari from the United States

Supreme Court expired. See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.

1999). Accordingly, M r. Green had one year either to file a § 2254 habeas

petition or to toll the one-year period of limitation by filing a state petition for

postconviction relief. Because he did not file a state petition until 2003, by which

time § 2244(d)(1)’s one-year period of limitation had expired, his habeas petition,

was untimely by more than eight years. The only issue is whether M r. Green

established a case for equitable tolling.

      In M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998), we recognized that §

2244(d) is not jurisdictional and is subject to equitable tolling. “H owever, this

equitable remedy is only available when an inmate diligently pursues his claims

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and demonstrates that the failure to timely file w as caused by extraordinary

circumstances beyond his control.” M arsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000), cert. denied, 531 U.S. 1194 (2001).

             Equitable tolling would be appropriate, for example, when a
      prisoner is actually innocent, when an adversary’s conduct – or other
      uncontrollable circumstances – prevents a prisoner from timely
      filing, or when a prisoner actively pursues judicial remedies but files
      a defective pleading during the statutory period. Simple excusable
      neglect is not sufficient. M oreover, a petitioner must diligently
      pursue his federal habeas claims; a claim of insufficient access to
      relevant law . . . is not enough to support equitable tolling.

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal citations and

quotation marks omitted).

      A prisoner’s confinement in administrative segregation may qualify as an

extraordinary circumstance beyond his control, see Espinoza-M atthews v.

California, 432 F.3d 1021, 1027-28 (9th Cir. 2005), but equitable tolling is

justified only where the prisoner has shown that despite his segregated

confinement he diligently pursued his habeas claims and his confinement

prevented him from filing on time. M r. Green has not made such a showing.

Nowhere does he claim that he was denied access to legal materials because of his

confinement. Although he asserts the process of acquiring legal materials was

slow and unwieldy and perhaps subject to the caprice of unfriendly staff, he does

not contend his confinement prevented him from filing in a timely fashion, only

that it made it more difficult. Such difficulty, does not explain why M r. Green



                                         -5-
took nearly six years after his conviction became final to pursue his state habeas

claims. Two letters requesting advice in six years do not support a finding of due

diligence. Because M r. Green has not shown that he diligently pursued his habeas

claims and was prevented by extraordinary circumstances beyond his control from

filing his § 2254 petition within the one-year period of limitation, he may not rely

on equitable tolling as an excuse. Reasonable jurists would not debate the district

court’s dismissal of his petition as untimely.

      In his COA application, M r. Green implies that any procedural bar to his

habeas claims should be excused to prevent a fundamental miscarriage of justice

on the grounds that he is actually innocent. To prevail on a claim of actual

innocence, M r. Green “must identify evidence that affirmatively demonstrates his

innocence. A criminal defendant is required to provide evidence that does more

than simply undermine the finding of guilt against him or her.” Phillips v.

Ferguson, 183 F.3d 769, 774 (10th Cir. 1999) (internal citations and quotations

marks omitted). Our review of the record establishes that nowhere other than in

his COA application has M r. Green claimed actual innocence. Nor has he

identified evidence affirmatively demonstrating his innocence. Accordingly, he

has not shown the possibility of a fundamental miscarriage of justice excusing the

timeliness bar.




                                         -6-
     For the aforementioned reasons, we DENY M r. Green’s application for a

COA and DISM ISS his appeal.

                                           ENTERED FOR THE COURT

                                           Stephanie K. Seymour
                                           Circuit Judge




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