                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 13 2004
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 ALEJANDRO GONZALES, also
 known as Miguel Lopez,
                                                        No. 04-6258
             Petitioner-Appellant,
       v.                                            (W.D. Oklahoma)
 STEVEN BECK; ATTORNEY                            (D.C. No. CV-04-262-C)
 GENERAL OF THE STATE OF
 OKLAHOMA,

             Respondents-Appellees.




                                     ORDER



Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Alejandro Gonzales, a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 habeas

petition. Mr. Gonzales also seeks to proceed in forma pauperis. We deny his

request for a COA and dismiss this matter.

                                I. BACKGROUND

      On January 6, 2000, Mr. Gonzales entered a plea of guilty on nine counts

involving multiple drug-related offenses. Mr. Gonzales was sentenced to serve

twenty-five year terms of imprisonment for each of the first three counts, and
five-year terms for the remaining six counts, all to run concurrently. Mr.

Gonzales did not timely move to withdraw his guilty plea or appeal the

convictions.

      Over two years later, on March 14, 2002, Mr. Gonzales sought post-

conviction relief in Oklahoma state court, raising five challenges to his conviction

and sentence. On May 24, 2002, the Oklahoma state court denied relief. On

March 6, 2003, Mr. Gonzales sought to appeal this decision out of time, which the

Oklahoma district court denied on December 4, 2003. The Oklahoma Court of

Criminal Appeals affirmed this decision on February 12, 2004.

      On March 7, 2003, Mr. Gonzalez filed a petition pursuant to § 2254 in case

No. 03-318-F, which the district court dismissed on June 13, 2003 for failure to

exhaust state court remedies. Mr. Gonzales filed the instant § 2254 petition on

March 9, 2004, alleging Brady violations, Miranda violations, ineffective

assistance of counsel, violation of his due process rights, and other claims “listed

in lower court pleadings.” Aplt’s Br. at 3. The district court denied the petition

as untimely under 28 U.S.C. § 2244(d)(1) and found that equitable tolling did not

excuse its untimeliness.

                                 II. DISCUSSION

      We review de novo the district court’s denial of a habeas petition based on

§ 2244(d), examining a district court’s findings of fact for clear error. Burger v.


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Scott, 317 F.3d 1133, 1137-38 (10th Cir. 2003). “[W]e review the district court’s

decision on equitable tolling of the limitations period [, however,] for an abuse of

discretion.” Id. at 1138. Because Mr. Gonzales is proceeding pro se, we construe

his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall

v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

      A. One-year Limitations Period

      Where, as here, a district court denies a habeas petition on procedural

grounds without reaching the underlying constitutional claims, a COA should

issue if the petitioner demonstrates “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right, and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA),

Congress has “established a one-year period of limitations for habeas petitions.”

Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28 U.S.C. §

2244(d)(1)). By statute, the one-year period of limitations generally begins

running from “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C. §

2244(d)(1)(A). The one-year limitations period is tolled, however, for “[t]he time

during which a properly filed application for State post-conviction relief . . . is



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pending,” see id. § 2244(d)(2), and may also in rare circumstances “be subject to

equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (discussing the limited

circumstances in which equitable tolling may be warranted and noting that

“[s]imple excusable neglect is not sufficient”).

      Mr. Gonzales contends that the state waived the time bar because it failed

to raise it in a timely fashion below. According to Mr. Gonzales, when he filed

his § 2254 petition in case No. 03-318-F, the state initially raised only his failure

to exhaust. We shall attempt to clarify the procedural ambiguities in this case.

      The district court dismissed Mr. Gonzales’s § 2254 petition in No. 03-318-

F without prejudice for failure to exhaust. Upon further review, the magistrate

judge and district court recognized that this dismissal without prejudice in No.

03-318-F was premised upon the belief that Mr. Gonzales might perfect an appeal

out of time in the Oklahoma state court. See Supl. Report and Recommendation,

at 5 n. 4 (July 20, 2004) “[U]pon further review of this decision [to dismiss

without prejudice], . . . . [Mr. Gonzales] did not file his post-conviction

application within the one-year limitations period governing the filing of his

habeas petition, and therefore the post-conviction application could not toll the

running of the limitation period . . . , whether or not [Mr. Gonzales] was allowed




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to file an appeal out-of-time in his post-conviction proceeding.” Id. We hold this

conclusion to be correct.

      As to Mr. Gonzales’s waiver claim, issuance of a COA is jurisdictional,

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and as such, the state cannot

waive an argument as to the timeliness of a filing of a petition pursuant to

AEPDA when a COA is required. See United States v. Cook, 997 F.2d 1312,

1320 (10th Cir. 1993) (“[J]urisdictional issues are never waived and can be raised

on collateral attack.”).

      We agree with the district court’s conclusion that under § 2244(d), Mr.

Gonzales filed his habeas petition after the expiration of the one-year limitations

period. Because Mr. Gonzales entered his guilty plea on January 6, 2000, and he

did not appeal his conviction, the judgment became final on January 16, 2000, ten

days after entry of the judgment. See O KLA . C RIM . A PP . R. 4.2(A), O KLA . S TAT .

tit. 22, ch. 18, app. (2004). Absent a tolling event, Mr. Gonzales was therefore

required to file his habeas petition on or before January 16, 2001, for the petition

to be timely. Because Mr. Gonzales did not seek post-conviction relief until after

January 16 2001, no tolling event occurred.

      B. Equitable Tolling

      Mr. Gonzales also sought equitable tolling before the district court. Mr.

Gonzales maintains that he is actually innocent, that he is unskilled in the English



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language, that the state did not allow him to call the Mexican Consulate as

required by treaty, that he did not received legal assistance in Spanish, and that he

had limited access to any current legal materials. For the last proposition he

attaches an affidavit from the law library supervisor indicating that the law library

at the Mack H. Alford Correctional Facility has not received any new legal

materials since August 1995.

      Equitable tolling is appropriate only “when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by extraordinary

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

Cir. 2000).

      [W]e have limited equitable tolling of the one-year limitations period
      to “rare and exceptional” circumstances. Therefore, [e]quitable 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.

Burger, 317 F.3d at 1141 (citation omitted).

      To demonstrate actual innocence before the district court, Mr. Gonzales

must establish that “‘it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence.’” Phillips v. Ferguson, 182 F.3d 769,

774 (10th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Mr.




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Gonzales offers no evidence to support his claim of actual innocence; he merely

asserts that he was convicted for federal rather than state crimes.

      As to the remaining assertions, while we recognize that at least some of the

hardships noted by Mr. Gonzales may have inhibited his ability to timely file his §

2254 petition, we conclude that equitable tolling should not apply here to excuse

his otherwise untimely filing. See Gibson, 232 F.3d at 808 (“[A] claim of

insufficient access to relevant law . . . is not enough to support equitable

tolling.”); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (holding that

unfamiliarity with the legal process due to illiteracy does not merit equitable

tolling). Mr. Gonzales cannot show his efforts were diligent: he waited over full

year before seeking post-conviction relief, and that attempt may have been

prompted by the government’s arguments in No. 03-318-F. See Miller, 141 F.3d

at 978 (refusing to apply equitable tolling because petitioner “provided no

specificity regarding the alleged lack of access and the steps he took to diligently

pursue his federal claims”).

      We have reviewed the entire record, the district court’s order, and the brief

on appeal. We agree with the district court’s conclusion that Mr. Gonzales is not

entitled to equitable tolling.

                                 III. CONCLUSION




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      We conclude that the district court correctly dismissed Mr. Gonzales’s

habeas petition as untimely. We determine that he has failed to raise a debatable

issue, and therefore we DENY his request for a COA, DENY his motion to

proceed in forma pauperis, and DISMISS the matter.



                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




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