                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 9 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                        No. 02-4058
 v.                                           (D.C. Nos. 2:02-CV-059-C and
                                                     2:98-CR-526-C)
 JAVIER SANTOS-SAVERA,                                   (D. Utah)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and HARTZ, Circuit Judges.




      Javier Santos-Savera pled guilty to illegal reentry as a deported alien, was

sentenced on September 3, 1999, and did not appeal. (Aplt. B. at 3.) On January

22, 2002, a year and four months afterwards, Santos-Savera filed an action under

28 U.S.C. § 2255 to have his sentence set aside. (Id.) The Antiterrorism and



      *
         After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(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order and judgment is not binding precedent, except under the doctrines of law of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.
Effective Death Penalty Act of 1996 (AEDPA), however, bars collateral attacks

brought more than a year from the date a sentence becomes final. See 28 U.S.C. §

2255 (establishing a one-year limitations period).

      In the district court, Santos-Savera argued that AEDPA’s statute of

limitations should be equitably tolled because, during the year in which Santos-

Savera could have filed, he had been incarcerated in a state facility without

§ 2255 forms, federal law books or Spanish-speaking inmates to assist him in

drafting legal documents. 1 (Dist. Ct. Slip Op. at 3.) The district court found,

however, that Santos-Savera had asserted neither that the government was

required to provide these resources to him, nor that he had attempted to gain

access to them in any manner. (Id. at 2.) As there was then no evidence that lack

of legal assistance had prevented Santos-Savera from filing his petition within the

time period provided for by AEDPA, he was not entitled to have its statute of

limitations equitably tolled. (Id. at 3.)


      1
         Although he does not cite either of these arguments on appeal, Santos-
Savera further asserted in district court that AEDPA’s statute of limitations
should not apply because he had not been in “custody” for purposes of invoking
§ 2255 before transfer to federal authorities, and because the doctrine of audita
querela should allow the court to issue an extraordinary writ. (Dist. Ct. Slip Op.
at 2.) First, the district court correctly noted that petitioners incarcerated by
states are in “custody” for purposes of bringing § 2255 actions. (Id.) (citing
United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994)). Second, citations
to the antiquated doctrine of audita querela were unavailing given that the form of
pleading had been abolished in the federal system by Fed. R. Civ. P. 60(b). (Id. at
4); see also Black’s Law Dictionary 120 (5th ed. 1979).

                                            -2-
      Now in his petition for a certificate of appealability, Santos-Savera both

argues that the district court reviewed his application for equitable tolling under

too harsh a standard, and raises a new argument about ineffective assistance of

counsel. (Aplt. B. at 2, 6.) Santos-Savera’s first argument is without merit as

will be discussed, and his second argument is waived because he failed to raise it

below. In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (holding that issues not

raised in the district court are waived on appeal); Crow v. Shalala, 40 F.3d 323,

324 (10th Cir. 1994) (same).

      Santos-Savera’s argument that the district court reviewed his application

under too harsh a standard cites cases holding that a pro se plaintiff’s filings

should be examined more leniently than had he been represented by outside

counsel. (Aplt. B. at 7 - 8) (citing Haines v. Kerner, 404 U.S. 519 (1972), and

Sanders v. United States, 373 U.S. 1 (1963)). But this leniency applies to the

examination of technical language in pleadings rather than to their substantive

content. See, e.g., Whitney v. New Mexico, 113 F.3d 1170, 1173 - 74 (10th Cir.

1997) (“This court . . . will not supply additional factual allegations to round out

a [pro se] plaintiff’s complaint or [to] construct a legal theory on [his] behalf.”).

Here, as the district court properly found, Santos-Savera’s pleadings lacked

important substantive content in failing to allege that the government was




                                          -3-
required to provide specific legal resources to him, or that he in any way

attempted to gain access to such resources.

      Accordingly, for substantially the reasons stated by the district court, we

decline to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App.

P. 22(b). This appeal is DISMISSED.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        -4-
