                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 24 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 DARRIN M. BREWER,

          Petitioner-Appellant,

 v.                                                        No. 99-6350
                                                          (W.D. Okla.)
 DAYTON J. POPPELL, Warden,                         (D.Ct. No. 99-CV-851-C)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Darrin M. Brewer, a state prisoner appearing pro se, appeals the

district court’s decision dismissing, as untimely, his habeas corpus petition filed

pursuant to 28 U.S.C. 2254. We deny Mr. Brewer’s request for a certificate of

appealability and to proceed in forma pauperis, and dismiss his appeal.



      On November 19, 1993, Mr. Brewer’s conviction became final, following

his guilty plea to trafficking in illegal drugs after former conviction of a felony.

He unsuccessfully applied for state post-conviction relief December 17, 1997,

which the state district court denied July 29, 1998. No state appeal followed.



      Mr. Brewer filed his federal habeas petition June 16, 1999, claiming

ineffective assistance of counsel. The federal district court referred the matter to

a magistrate judge who issued a thorough and well-written Report and

Recommendation, suggesting dismissal of the petition as time-barred.

Specifically, because Mr. Brewer’s conviction became final prior to April 24,

1996, the magistrate judge determined the one-year statute of limitations for

bringing his petition, under 28 U.S.C. 2244(d)(1)(A) of the Antiterrorism and

Effective Death Penalty Act, began April 24, 1996. Because Mr. Brewer did not

file for state post-conviction relief during the limitation period, the magistrate

judge further concluded no tolling of the one-year limitation period occurred


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under 28 U.S.C. §2244(d)(2). Finally, because Mr. Brewer did not file his federal

habeas petition until June 16, 1999, well over two years after the limitation period

expired on April 23, 1997, the magistrate judge found his petition untimely.



       The magistrate judge also considered and rejected Mr. Brewer’s assertion

the court must nevertheless consider his petition, even if untimely, in order to

prevent a fundamental miscarriage of justice based on his actual innocence. 1 In

support of his claim of innocence, Mr. Brewer pointed to his indictment which

states the crime for which he was convicted allegedly occurred on or about

January 15, 1993. Mr. Brewer contended he did not commit this crime because on

that date he was actually in jail. However, the magistrate judge found the crime

at issue actually occurred January 12, 1993, despite the date provided on the

indictment. Moreover, the magistrate judge determined the miscarriage of justice


       1
         Mr. Brewer also argued he timely filed his petition under other provisions of
§ 2244. Specifically, Mr. Brewer asserted 28 U.S.C. § 2244(d)(1)(B), which delays the
limitation period during a state action impeding the filing of a petition, must apply
because Oklahoma law on attacking a guilty plea interfered with his ability to discover his
counsel’s ineffective assistance. He also contended § 2244(d)(1)(D), which tolls the
limitation period from the date a claim could have been discovered, applies because he
only recently discovered the ineffectiveness of his counsel and the factual basis for his
claim. The magistrate judge rejected these contentions, determining § 2244(d)(1)(B) did
not apply because no illegal state impediment occurred, and § 2244(d)(1)(D) did not
apply because Mr. Brewer made no showing he exercised due diligence in pursuing his
claim. Mr. Brewer did not appeal these determinations, and thus, we decline to address
them.


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exception to the limitation period did not apply, even if Mr. Brewer claimed

innocence, because Mr. Brewer: (1) did not diligently pursue his federal habeas

claims; and (2) failed to support his claim of innocence with new and reliable

evidence not presented at trial. 2 After reviewing and addressing Mr. Brewer’s

objections to the Report and Recommendation, the district court adopted the

magistrate judge’s recommendation in its entirety and dismissed the petition.



      On appeal, Mr. Brewer addresses the timeliness of his petition by again

suggesting he is innocent because he was jailed on the date he allegedly

committed the crime for which he received his conviction. The other issues

raised by Mr. Brewer concern only the merits of his ineffective assistance of

counsel claim and the futility of exhausting his state remedies.



      We review the district court’s factual findings under a clearly erroneous

standard and its legal conclusions de novo. Rogers v. Gibson, 173 F.3d 1278,

1282 (10th Cir. 1999), cert. denied, 120 S.Ct. 944 (2000). A careful review of

the record shows the district court correctly determined Mr. Brewer’s petition



      2
         The magistrate judge also found Mr. Brewer did not exhaust his state remedies,
but given the untimeliness of the petition, declined to address Mr. Brewer’s argument that
a pursuit of state remedies would have proven futile.


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became due April 23, 1997. Because Mr. Brewer did not file his petition until

June 16, 1999, his petition is untimely. As to Mr. Brewer’s contention he is

innocent, we note the magistrate judge thoroughly addressed this issue and for

that reason, we decline to duplicate the same analysis here other than to note the

record clearly shows Mr. Brewer committed the crime January 12, not January 15

when he was incarcerated.



      Under the circumstances presented, Mr. Brewer fails to make a substantial

showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). Thus, for substantially the same reasons set forth in the magistrate

judge’s August 12, 1999 Report and Recommendation, and the district court’s

August 24, 1999 Order of Dismissal, we deny Mr. Brewer’s application for a

certificate of appealability, deny his request to proceed in forma pauperis and

DISMISS his appeal.



                                       Entered by the Court:



                                       WADE BRORBY
                                       United States Circuit Judge




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