                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               MAR 6 2001
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 TEDDY WAYNE WEST,

           Petitioner-Appellant,                            No. 00-7102
           v.                                             (E.D. Oklahoma)
 STEVE KAISER,                                        (D.C. No. 99-CV-578-B)

           Respondent-Appellee.


                                ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , 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)(c);10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument

       Teddy W. West, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2254. We

agree with the district court’s finding that Mr. West’s petition is untimely and that


       *
        This order and judgment is not binding precedent, except under the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.
he has not presented claims for which relief should be granted. Accordingly, we

decline to issue a certificate of appealability and dismiss the appeal.

       Mr. West was convicted of escape from a county jail, robbery with a

dangerous weapon, assisting a prisoner to escape, and robbery by force or fear. In

his habeas petition, Mr. West alleged that he (1) received ineffective assistance of

trial and appellate counsel and (2) was deprived of due process and equal

protection through his enhanced sentence. The district dismissed Mr. West’s

petition for habeas corpus as untimely under the one-year limitation period in 28

U.S.C. § 2244(d), and subsequently denied his application for a certificate of

appealability. Before us is a renewed application for a certificate of appealability

and a motion to proceed in forma pauperis.

       “In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo,” keeping in mind that “our review of the state court’s

proceedings is quite limited.”    Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.

1999), cert. denied , 528 U.S. 1120 (2000). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Mr. West’s conviction became final on

December 15, 1997, which marked the conclusion of the ninety-day period for

filing a petition for certiorari to the Supreme Court.   See Locke v. Saffle , 237

F.3d 1264, 1271-72 (10th Cir. 2001) (stating that “the one-year limitation period


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begins to run when the time for filing a certiorari petition expires” and “the

period of ‘direct review’ in § 2244(d)(1)(A) includes the period within which a

petitioner can file a petition for a writ of certiorari from the United States

Supreme Court, whether or not the petitioner actually files such a petition.”)

(internal quotation marks and citations omitted). As a result, on December 15,

1997, the one-year limitation period for filing an application for a writ of habeas

corpus began to run, see § 2244(d)(1), subject to the tolling provision in §

2244(d)(2).

       Because Mr. West filed an application for post-conviction relief in state

court on September 8, 1998, the limitation period was suspended for 256 days

until the Oklahoma Court of Criminal Appeals affirmed the denial of post-

conviction relief on May 21, 1999.     See 28 U.S.C. § 2244(d)(2). Mr. West

subsequently filed his habeas petition in federal court on October 28, 1999, 61

days after the one-year time limit expired. The district court issued an order

determining Mr. West untimely filed his petition and that no equitable tolling was

warranted.

       On appeal, Mr. West asks us to reconsider his claim that equitable tolling is

warranted. We have held that “AEDPA’s one-year statute of limitations is subject

to equitable tolling but only ‘in rare and exceptional circumstances.’”    Gibson v.

Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (quoting      Davis v. Johnson , 158 F.3d


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806, 811 (5th Cir. 1998)). Examples of such circumstances are actual innocence

or when uncontrollable circumstances prevent an inmate from timely filing.

“Simple excusable neglect is not sufficient.”     Id. , 232 F.3d at 811.

       In support of equitable tolling, Mr. West argues that he was unable to file

his petition because of the inadequate legal facilities and legal assistance

available in the private correctional facility in which he is incarcerated. We have

stated that “[a] state may elect to provide legal assistance to inmates in lieu of

maintaining an adequate prison law library.”      Petrick v. Maynard , 11 F.3d 991,

995 (10th Cir. 1993). Legal assistance does not necessarily mean assistance from

a lawyer; rather, it can mean “adequate assistance from persons trained in the

law,” Bounds v Smith , 430 U.S. 817, 828 (1977), such as law clerks, paralegals,

volunteer attorneys, or staff attorneys.

       Mr. West contends that one contract attorney assists approximately 2,500

inmates at three separate Corrections Corporations of America-owned correctional

facilities. In further support of his argument that the limitation period should be

equitably tolled, he states that he had to wait eight to twelve weeks for assistance

from the contract attorney and that he had to wait approximately sixty days for

transcripts from the court reporter.

       We agree with the conclusions of the district court that Mr. West’s petitions

were untimely and that Mr. West’s pleadings, which we construe liberally


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pursuant to Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), suggest

no basis for equitable tolling. Specifically, he has not demonstrated how the

unavailability of access to counsel or materials delayed his application, which

merely appended his state post-conviction filing.       See Miller v. Marr , 141 F.3d

976, 978 (10th Cir. 1998) (rejecting equitable tolling in part because of similarity

of claims raised by petitioner on direct review and in state post-conviction

motion). As such, Mr. West has not demonstrated any extraordinary way that he

has been prevented from asserting his rights.       See id. (suggesting equitable tolling

of limitation period when delay is encountered with circumstances over which

inmate had no control and inmate has diligently pursued his claims). In addition,

Mr. West provides us with little specificity regarding the steps he took to

diligently pursue his federal claims so as to justify equitable tolling of the

limitation period.   See id.

       We have thoroughly reviewed the record on appeal, Mr. West’s brief, and

the district court’s order. Accordingly, we GRANT his motion to proceed in

forma pauperis, DENY his request for a certificate of appealability for

substantially the same reasons set forth in the district court’s order, and DISMISS



the appeal.

                                          Entered for the Court,


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Robert H. Henry
Circuit Judge




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