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

                                                                            NOV 6 2002
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk


 RUSSELL N. WEIBLEY, JR.,

             Petitioner - Appellant,
                                                         No. 02-5063
   v.                                               D.C. No. 00-CV-789-K
                                                      (N.D. Oklahoma)
 STEPHEN KAISER, Warden,

             Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before EBEL , LUCERO , and HARTZ , Circuit Judges.



        Pro se petitioner Russell Weibley, 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), and to challenge the district court’s denial of

his “Motion to Set Aside Order, Amend Findings and to Grant Relief from


        *
         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judgment is not binding precedent, except under the doctrines of law of the case,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.
Judgment Entered Herein.” We conclude that petitioner has not demonstrated

extraordinary circumstances warranting equitable tolling of the period of

limitation, and we deny a COA.

      Weibley was convicted of First Degree Murder and received a life sentence

without the possibility of parole. He appealed his conviction to the Oklahoma

Court of Criminal Appeals (“OCCA”) and on July 8, 1998, the OCCA upheld his

conviction and sentence. Weibley filed a pro se petition for rehearing that was

denied by the OCCA on August 11, 1998. He attempted to file a “Motion to

Reconsider” but it was returned to him with an advisement that “the mandate

issued on 8-14-98, and it is a final order so I am returning your motion as I can

not file anything after the mandate.” (R. Doc.15 at Exhibit E.) Weibley did not

file a petition for writ of certiorari in the United States Supreme Court.

      Weibley filed a petition for a writ of habeas corpus in the OCCA on

September 18, 1998, and by order dated October 2, 1998, the OCCA declined

jurisdiction over it because he had failed to file his petition in the appropriate

state district court. After his request for “case records” and “transcripts of

arraignment hearings” was denied by the state district court, Weibley filed a

petition for writ of mandamus in the OCCA. On April 27, 1999, the OCCA

declined jurisdiction.




                                         -2-
      Weibley filed an application for post-conviction relief in state court on

August 30, 1999, which was denied on February 7, 2000. Over a month later, on

March 28, 2000, he appealed to the OCCA, but the OCCA dismissed the appeal

as untimely on April 27, 2000. Subsequently, the OCCA granted Weibley’s

request for a post-conviction appeal out of time, but affirmed the state district

court’s denial of post-conviction relief on July 31, 2000. Weibley filed his

federal habeas application on September 5, 2000.    1
                                                        The district court dismissed

his § 2254 petition as time-barred and denied his motion to set aside the order.

      We may issue a COA only if an applicant “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this

standard requires “a demonstration that . . . includes showing that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’”       Slack v. McDaniel ,

529 U.S. 473, 484 (2000) (quoting    Barefoot v. Estelle , 463 U.S. 880, 893

(1983)). We review the legal conclusions of a district court in a habeas

proceeding de novo.    Martin v. Kaiser , 907 F.2d 931, 933 (10th Cir. 1990).



      1
        Weibley’s federal habeas application was received by the district court on
September 11, 2000, but pursuant to the ‘mailbox rule’ announced in Houston v.
Lack, 487 U.S. 266, 276 (1988), a pro se prisoner’s papers are considered filed
when given to prison authorities for mailing to the appropriate court.

                                         -3-
Because Weibley filed his application for a COA pro se, we construe his petition

liberally. Haines v. Kerner , 404 U.S. 519, 520–21 (1972) (per curiam).

       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 tolled or suspended during the pendency of a state

application for post-conviction relief    properly filed during the limitations period.

§ 2244(d)(2). Also, the one-year period is subject to equitable tolling in

extraordinary circumstances.       Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       For purposes of § 2244(d)(1)(A), Weibley’s conviction became final at the

latest on November 10, 1998, ninety days after the OCCA denied his petition for

rehearing. See Locke v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001) (holding

that a conviction becomes final for habeas purposes when the ninety-day period

for filing a petition for a writ of certiorari to the United States Supreme Court has

expired); Sup. Ct. R. 13.   2
                                Absent tolling, Weibley’s application for habeas


       2
         Weibley argues that the three motions he filed between July 1998 and
October 1998 tolled the statute and that the relevant starting date for the one- year
period is January 2, 1999, which is ninety days after the OCCA refused
jurisdiction of his state habeas petition on October 2, 1998. This argument has no
                                                                        (continued...)

                                            -4-
corpus had to be filed within one year, by November 10, 1999, in order to be

timely under AEDPA. Pursuant to § 2244(d)(2), however, the limitations period

was tolled between August 30, 1999, when Weibley properly filed his state

application for post-conviction relief, and March 8, 2000, thirty days after

Weibley could have filed an appeal of the state court’s denial of his application.

See Gibson v. Klinger , 232 F.3d 799, 804 (10th Cir. 2000) (holding that the

statute is tolled for the thirty days during which petitioner could have filed an

appeal of the state court’s denial of his application for post-conviction relief).

Thereupon the limitations period resumed running, but pursuant to § 2244(d)(2)

it was again tolled from May 8, 2000, when Weibley filed a request for an appeal

out of time, until July 31, 2000, when the OCCA affirmed the denial of his

application. Weibley thus had to file his petition by August 11, 2000, to meet the

one-year deadline imposed by § 2244. Because he failed to file his federal

habeas petition until September 5, 2000, absent equitable tolling his petition was

untimely.




      2
        (...continued)
merit, however, because there is nothing to toll before November 10, 1998. As
our citation to Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001), above,
makes clear, ninety days are tacked on from the date a petitioner can file for a
writ of certiorari in the United States Supreme Court, which in this case was
August 11, 1998.

                                         -5-
       In his “Application for COA and Opening Brief,” Weibley argues that we

should “ignore the procedural bar that has been attached to this case” and remand

the case back to the federal district court. (Opening Br. at 2.) Because Weibley

is proceeding pro se, we liberally construe his arguments as a claim that the one-

year period of limitations should be equitably tolled.    See Haines , 404 U.S. at

520–21. Weibley’s arguments for equitable tolling boil down to the following:

(1) his attorney “jumped ship” on July 8, 1998, after the OCCA upheld his

conviction (Opening Br. at 10); (2) he was “continually denied” his legal records

and transcripts from December 9, 1999 to August 23, 2000 (        id. at 17); (3) he had

only limited access to a law library; (4) the OCCA “held control over the case”

after he failed to include an affidavit for in forma pauperis status and thus he was

ultimately prevented from filing an appeal in time (     id. at 24); and (5) he is

actually innocent of his crime of conviction.

       His first argument—that his attorney “jumped ship”—fails because

Weibley merely expresses disenchantment with the fact that his attorney did not

represent him during his post-conviction appeals. Weibley’s “allegation” is

simply not an extraordinary circumstance that might warrant equitable tolling,

particularly because there is no federal constitutional right to counsel in collateral

proceedings.   See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).




                                            -6-
       Weibley’s second argument—that prison officials withheld his legal

materials—is better analyzed as an impediment under § 2244(d)(1)(B)        (providing

that the limitations period commences on “the date on which the impediment to

filing an application created by State action in violation of the Constitution or

laws of the United States is removed,     if the applicant was prevented from filing

by such state action .” (emphasis added)). Weibley’s claim is insufficient because

he does not allege specific facts that demonstrate how his alleged denial of these

materials impeded his ability to file a federal habeas petition.   See also Miller ,

141 F.3d at 978 (rejecting § 2244(d)(1)(B) claim of impediment to legal materials

because of lack of specificity with regard to alleged lack of access).

       His third argument—that he had insufficient library access—must also fail

because allegations regarding insufficient library access, standing alone, do not

warrant equitable tolling.    See id. at 978 (finding that lack of access to case law

does not warrant equitable tolling).

       Weibley’s fourth argument—that the OCCA maintained “control” over his

case and delayed his filing of an appeal—fails because we cannot fathom how

OCCA’s “control” of his post-conviction appeal might be an exceptional

circumstance warranting equitable tolling of the limitations period. Pursuant to

§ 2244(d)(2), a habeas petitioner is statutorily entitled to tolling of the limitations

period where he has “properly filed” an application for state post-conviction


                                             -7-
relief. It would be odd indeed if we were to equitably toll the limitations period

during the pendency of an     improperly filed application—as Weibley asks us to do

here with respect to his improperly filed appeal to the OCCA. We decline

Weibley’s request in this regard. Moreover, we note that any delay was due

solely to Weibley’s own error.      Cf. Gibson , 232 F.3d at 808 (“Equitable tolling

would be appropriate, for example . . . when an adversary’s conduct—or other

uncontrollable circumstances—prevents a prisoner from timely filing . . . .”).

       Weibley’s final argument—that he is actually innocent—fails because he

does not make a colorable claim of actual innocence. Weibley makes only

conclusory allegations regarding his innocence and provides no analysis or

specific facts to warrant equitable tolling.     See Schlup v. Delo , 513 U.S. 298, 324

(1995) (holding that a petitioner must support his allegations of innocence with

“new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial”).

       Weibley does not allege circumstances warranting equitable tolling, and we

conclude that his federal habeas petition is time-barred. Because reasonable

jurists could not debate whether his petition for habeas relief should have been




                                               -8-
resolved in a different manner, his application for a COA is   DENIED , and this

matter is DISMISSED . 3

      The mandate shall issue forthwith.



                                                 ENTERED FOR THE COURT


                                                 Carlos F. Lucero
                                                 Circuit Judge




      3
           Weibley’s “Request for Leave to Supplement the Appeal Brief and
Certificate of Appealability” is denied. He alleges that he has been isolated in a
segregation cell and was forced to handwrite his argument without the assistance
of a law library or legal personnel. However, Weibley does not explain how
additional time to supplement his brief would buttress his arguments regarding
tolling of the statute of limitations.

                                           -9-
