                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 9 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 STEPHEN CHARLES
 CHRISTENSEN,

           Petitioner - Appellant,                      No. 00-6160
 vs.                                               (D.C. No. 98-CV-1444)
                                                        (W.D. Okla.)
 REGINALD HINES; DEBBIE
 MAHAFFEY; ATTORNEY
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Petitioner Stephen Charles Christensen, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying his habeas petition, 28 U.S.C. § 2254. Because Mr. Christensen


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
has failed to make “a substantial showing of the denial of a constitutional right”

as required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.

      In 1995, Mr. Christensen and his wife, Linda Christensen 1, were convicted

in Oklahoma state court of several drug-related charges. Mr. Christensen was

convicted of conspiracy to traffic a controlled dangerous substance, trafficking a

controlled dangerous substance, maintaining a motel room where a controlled

dangerous substance is kept, possession of a controlled dangerous substance

without a tax stamp, possession of drug paraphernalia, possession of a firearm

while committing a felony, and possession of a controlled dangerous substance

within 1000 feet of a school. R. Doc. 1 Ex. C (Judgment and Sentence). Mr.

Christensen was sentenced to 30 years’ imprisonment and a $16,000 fine. Id.

The Oklahoma Court of Criminal Appeals affirmed his conviction on direct

appeal. Christensen v. State, No. F-95-894 (Okla. Crim. App. Dec. 6, 1996)

(unpublished).

      Mr. Christensen first sought state post-conviction relief on April 4, 1997, in

the Oklahoma County District Court, alleging five constitutional violations. The

state district court denied his petition on May 2, 1997, holding that Petitioner had

waived four of the five issues by not raising them on direct appeal and that the

record did not support the remaining claim. Christensen v. State, No. CF-94-6083


      1
          Petitioner and Linda Christensen are now divorced.

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(Okla. Dist. Ct. May 2, 1997) (unpublished). On June 4, 1997, Mr. Christensen

appealed the state district court’s denial of his application for post-conviction

relief, and on July 7, 1997, the OCCA dismissed Mr. Christensen’s appeal as

untimely. Christensen v. State, No. PC 97-792 (Okla. Crim. App. July 7, 1997)

(unpublished).

      Mr. Christensen filed a second post-conviction application in the state

district court on August 20, 1997, requesting an appeal out of time to contest the

state district court’s earlier findings. The state district court denied this request

on September 15, 1997, Christensen v. State, No. CF-94-6083 (Okla. Dist. Ct.

Sept. 15, 1997) (unpublished), and the OCCA affirmed this denial on October 28,

1997. Christensen v. State, No. PC 97-1395 (Okla. Crim. App. Oct. 28, 1997)

(unpublished). Mr. Christensen executed his federal habeas petition on October

6, 1998. 2 R. Doc. 1.

      In his federal habeas petition, Mr. Christensen raised five alleged

constitutional violations, including a claim of “actual innocence.” R. Doc. 1 at

10A. The magistrate judge, in his report and recommendation, found all the


      2
        Mr. Christensen’s habeas petition was file-stamped on October 16, 1998.
However, as the magistrate judge explained in his Report and Recommendation,
R. Doc. 27 at 4 n.7, the petition is deemed filed when the Mr. Christensen
deposited it in the prison mail system. See Hoggro v. Boone, 150 F.3d 1223,
1226 n.3 (10th Cir. 1998). We agree with the magistrate judge’s assumption that
the petition was placed in the prison mail system on the day Mr. Christensen
signed it, October 6, 1998.

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claims to be time-barred as Mr. Christensen had failed to file his federal habeas

petition within the one-year statute of limitations, 28 U.S.C. § 2244(d)(1)(A). See

R. Doc. 27 at 7. The magistrate judge also concluded that Mr. Christensen’s

claim of actual innocence did not qualify his petition for equitable tolling, as Mr.

Christensen failed to present any evidence in support of his claim. Id. at 12, 15.

The district court adopted the magistrate judge’s report and recommendation and

dismissed the petition as time-barred, R. Doc. 33, and denied a COA. Id. Doc.

43.

      Mr. Christensen raises two claims before this court: (1) that “[t]he District

court was in error for holding/not permitting the statute of limitations to be tolled

for actual innocence claim”; and (2) that “[t]he district court was in error for not

permitting petitioner to supplement his claims and the record to show innocence.”

Aplt. Br. at 16.

      We have reviewed the district court’s judgment in light of Mr.

Christensen’s submissions to this court and the record on appeal. We agree with

the magistrate judge’s recommendation and the district court’s order that Mr.

Christensen’s petition be dismissed as time-barred. See R. Doc. 27 at 6-10, Doc.

33. Mr. Christensen’s conviction became final when his time for seeking

certiorari in the United States Supreme Court expired on March 6, 1997. See

Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, 528 U.S.


                                         -4-
1084 (2000). Under 28 U.S.C. § 2244(d)(1)(A), Mr. Christensen had one year,

until March 6, 1998, to file his federal habeas petition. Mr. Christensen did not

file his federal habeas petition until October 6, 1998. Even tolling the limitations

period for the time Mr. Christensen’s first application for state post-conviction

relief was pending, 28 U.S.C. § 2244(d)(2), the statutory 30-day period Mr.

Christensen had to appeal the denial of that first application, Gibson v. Klinger,

232 F.3d 799, 804 & n.1 (10th Cir. 2000), and the time Mr. Christensen sought

leave to seek an appeal out of time, Smith v. State, 611 P.2d 276 (Okla. Crim.

App. 1980), Mr. Christensen had approximately an additional 129 days, or until

July 13, 1998, to timely file his habeas petition. Mr. Christensen did not file his

habeas petition until October 6, 1998, almost three months late.

      Mr. Christensen’s mere assertion of an actual innocence claim is not

sufficient grounds for equitable tolling. In order to qualify for equitable tolling

on an actual innocence claim, the petitioner must come forward with sufficient

evidence to undermine the court’s confidence in the outcome of his criminal

proceedings. See Lucidore v. New York State Division of Parole, 209 F.3d 107,

114 (2d Cir.) (“In order to demonstrate actual innocence in a so-called collateral

proceeding, a petitioner must present new reliable evidence that was not presented

at trial and show that it is more likely than not that no reasonable juror would

have found [him] guilty beyond a reasonable doubt.”) (internal quotations


                                         -5-
omitted, alteration in original), cert. denied, 121 S. Ct. 175 (2000); Felder v.

Johnson, 204 F.3d 168, 171 (5th Cir.) (petitioner’s unsupported actual innocence

claim does not constitute grounds for equitable tolling “given that many prisoners

maintain they are innocent”), cert. denied, 121 S. Ct. 622 (2000). Here, Mr.

Christensen has made no showing of any such evidence to support his actual

innocence claim. In addition, Mr. Christensen has failed to provide any valid

explanation for his delay in filing, thereby failing to diligently pursue his claims

as equitable tolling requires. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998).

         We DENY a COA, DENY leave to proceed in forma pauperis, and

DISMISS this appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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