                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                 UNITED STATES COURT OF APPEALS                          APR 12 2001

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 MALCOLM NIGEL SCOTT,

          Plaintiff-Appellant,
                                                        No. 00-5184
 v.                                               (D.C. No. CIV-99-471-K)
                                                        (N.D. Okla.)
 JAMES L. SAFFLE, Director,

          Defendant-Appellee.



                          ORDER AND JUDGMENT *


Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.


      Mr. Scott appeals the dismissal of his petition for habeas corpus as

untimely. As discussed below, we deny his applications to proceed in forma

pauperis and for a certificate of appealabillity, and we dismiss the appeal.

      Mr. Scott was convicted in state court in 1995 of first degree murder and

other charges. His conviction was affirmed on March 26, 1997, and he did not


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
file for a writ of certiorari in the United States Supreme Court. On March 19,

1998, Mr. Scott filed an application for state post-conviction relief, which was

denied on May 14, 1998. He did not appeal. On December 28, 1998, Mr. Scott

filed a second application for state post-conviction relief, which was denied on

March 1, 1999, and affirmed on June 8, 1999.

      On June 18, 1999, Mr. Scott filed a petition for a writ of habeas corpus in

federal district court. The petition is governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). See

Williams v. Taylor, 529 U.S. 420, 429 (2000). The district court dismissed Mr.

Scott’s petition as untimely because AEDPA mandates 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)

(2000). The statute contains specific guidelines for calculating the one-year

period, and “tolls” the period, or stops the clock from running, while a properly

filed appeal or request for collateral review is pending in the state courts.

      The district court held that Mr. Scott’s habeas petition had to be filed by

August 19, 1998, in order to be timely. The court reached this conclusion by

adding the ninety days allowed for the filing of a certiorari petition in the United

States Supreme Court to the date Mr. Scott’s conviction was affirmed on direct

appeal, March 26, 1997, yielding June 24, 1997, as the day Mr. Scott’s conviction



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became final. 1 Applying the one-year statutory period for filing a habeas petition

would then yield a filing deadline of June 24, 1998. The court rightly noted that

the clock was stopped for Mr. Scott when he filed his first application for state

post-conviction relief on March 19, 1998, ninety-eight days before the habeas

filing deadline of June 24, 1998. This application for post-conviction relief was

denied on May 14, 1998. The clock began ticking again at that point for another

ninety-eight days, rendering August 19, 1998, the final date by which Mr. Scott

was required to file his habeas corpus petition in federal court. 2 He did not file

his habeas petition until June 18, 1999. The filing of Mr. Scott’s second

application for post-conviction relief on December 28, 1998, did not toll the

limitations period because at the time of its filing the federal habeas limitations

period had already passed. See Rashid v. Khulmann, 991 F. Supp. 254, 259

(S.D.N.Y. 1998) (“Once the limitations period is expired, collateral petitions can

no longer serve to avoid a statute of limitations.”).




      1
        See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (one-year
period begins when time allowed to petition for certiorari has passed).
      2
         Subsequent to the federal district court’s ruling, this court held that the
AEDPA limitation period is tolled for the thirty days during which a petitioner
could have appealed the state court’s denial of his application for post-conviction
relief even if the petitioner does not actually appeal. See Gibson v. Klinger, 232
F.3d 799, 804 (10th Cir. 2000). Providing Mr. Scott an additional thirty days
would not make a difference here, however, as he missed the filing deadline by
far more than thirty days.

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      The district court rejected Mr. Scott’s claim for equitable tolling,

concluding that no “extraordinary circumstances” had prevented him from filing

his habeas petition in a timely manner and that he had not demonstrated diligence

in pursuit of his claims. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)

(petitioner must describe steps taken to diligently pursue claims).

      On appeal, Mr. Scott raises only the issue of equitable tolling, arguing an

entitlement to tolling because he did not discover his first application for post-

conviction relief had been denied until several months after the state ruled. He

claims he did not receive a copy of the opinion in a timely manner because he was

transferred to another prison before the decision was handed down and then

transferred five more times in the seven months that followed. He contends he

did not have time to inform the state court of his new address before the opinion

was mailed to his previous address. He also asserts he did notify the state court

of his new address shortly thereafter. The state court has no record of that

notification and determined as a finding of fact that Mr. Scott did not notify the

court. A petitioner challenging such a finding of fact by a state court must

provide clear and convincing evidence of that court’s error. See Hale v. Gibson,

227 F.3d 1298, 1309 (10th Cir. 2000); 28 U.S.C. § 2254(e)(1). Mr. Scott has not

done so.

      Mr. Scott also relies on two Fifth Circuit opinions, Phillips v. Donnelly,

216 F.3d 508 (5th Cir. 2000) (per curiam), and Fisher v. Johnson, 174 F.3d 710

                                          -4-
(5th Cir. 1999), cert. denied, 121 S. Ct. 1121 (2001). In Phillips, the court held

that the petitioner was entitled to equitable tolling not only because there had

been a substantial “delay in receiving notice of the denial” but also in

consideration of that fact that “Phillips pursued the process with diligence and

alacrity: he filed for an out-of-time appeal within three days of allegedly

receiving notice of the denial.” Phillips, 216 F.3d at 511. There was no such

diligence in Mr. Scott’s case. In Fisher, the Fifth Circuit denied equitable tolling

to a prisoner who (a) had no actual knowledge of AEDPA’s limitations period

until a copy of the statute arrived in the prison library, forty-three days after the

law went into effect and (b) spent seventeen days in a psychiatric ward, during

which time he was mentally incompetent and unable to work on his habeas

petition. Fisher, 174 F.3d at 714-15. We see no relevance in this case.

      In sum, Mr. Scott has not made the required showing that “‘jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling.’” Gibson, 232 F.3d at 802 (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)). We DENY his request for a certificate of appealability

and for leave to proceed in forma pauperis, and we DISMISS the appeal.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge




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