                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS February 8, 2008
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court


 DANNY JOSEPH WILLIAMS,

       Petitioner-Appellant,
                                                        No. 07-6228
 v.                                               (D.C. No. CIV-07-467-R)
                                                        (W.D. Okla.)
 DAVID C. MILLER,

       Respondent-Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Danny Joseph Williams, a state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we DENY his request for a COA and DISMISS.

      On April 23, 1992, Williams was convicted in Oklahoma state court on ten

felony counts. The Oklahoma Court of Criminal Appeals affirmed his conviction

on December 19, 1994, and Williams did not seek certiorari with the United

States Supreme Court. On July 21, 2004, Williams applied for state

post-conviction relief. His application was denied, and Williams’ subsequent
appeal was dismissed as untimely. Williams then filed several other unsuccessful

applications for collateral relief in state court.

      Williams brought this petition for habeas relief on April 5, 2007. A

magistrate judge found that the petition was time barred under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”) and that no basis existed for

equitably tolling AEDPA’s one-year time limitation. Over Williams’ objections,

the district court adopted the magistrate’s recommendation and dismissed

Williams’ petition. The district court then construed Williams’ subsequent notice

of appeal as a motion for a COA and denied that motion. 1

      Pursuant to 28 U.S.C. § 2244(d)(1), “[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.” In general, the limitations period

begins to run from the date on which the state judgment becomes final for

purposes of direct review. See § 2244(d)(1)(A). However, in the case of

petitioners whose convictions became final prior to April 24, 1996, AEDPA’s

effective date, we recognize a one-year grace period beginning on April 24, 1996,

      1
         Because the district court denied Williams a COA, he may not appeal the
district court’s decision absent a grant of COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Williams to show “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) (quotations
omitted).

                                           -2-
and ending on April 23, 1997. See Hoggro v. Boone, 150 F.3d 1223, 1225 (10th

Cir. 1998).

      Williams’ conviction became final for purposes of § 2244(d) on or about

March 19, 1995, after the ninety-day period for filing a petition for a writ of

certiorari in the United States Supreme Court had lapsed. See Rhine v. Boone,

182 F.3d 1153, 1155 (10th Cir. 1999); Sup. Ct. R. 13(1). Because his conviction

became final prior to AEDPA’s effective date, he had until April 23, 1997, to file

a habeas petition. Williams’ habeas petition, filed on April 5, 2007, is therefore

untimely by almost ten years. 2

      Williams argues that despite the untimeliness of his petition, the one-year

limitations period should be equitably tolled. We have recognized that equitable

tolling is “only available 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); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Williams

cites prison lockdowns, inadequate access to the prison law library, the

      2
         Section 2244(d)(2), which tolls the limitations period for the time during
which a properly filed application for state post-conviction or collateral review is
pending, applies to the one-year grace period for convictions predating AEDPA’s
effective date. See Hoggro, 150 F.3d at 1226. Williams asserts that he began his
state post-conviction proceedings before the grace period ended by attempting to
obtain copies of state-court records. Under § 2244(d)(2), however, collateral
review is commenced only when an application for relief is filed. See Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Section 2244(d)(2) therefore does
not toll Williams’ limitations period.

                                         -3-
“incompetent advice of inmate law clerks,” and his inability to hire counsel as

reasons for the delay. Considering that Williams’ petition was delinquent by

nearly a decade, however, we cannot agree that these circumstances qualify as

extraordinary or that he diligently pursued his claims. Nor does actual innocence

provide a basis to review the untimely petition, as Williams points to no new

evidence affirmatively demonstrating his innocence. See House v. Bell, 126

S. Ct. 2064, 2077 (2006) (actual innocence claims require “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence-that was not presented at trial” (quotation

omitted)).

      Accordingly, we DENY Williams’ request for a COA and DISMISS. We

GRANT Williams’ motion to proceed in forma pauperis.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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