                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 14 2001
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 DENNIS LUCERO,
             Petitioner-Appellant,                      No. 00-1492
 v.                                                (D.C. No. 00-Z-2018)
 JOHN W. SUTHERS and ATTORNEY                            (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,
             Respondents-Appellees.


                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      After examining the briefs 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); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      State prisoner Dennis Lucero seeks to appeal from the dismissal of his 28

U.S.C. § 2254 habeas petition. Petitioner pleaded guilty to second degree murder


      *
       This order and judgment is not binding precedent, except under the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.
and aggravated robbery, for which he was sentenced to consecutive terms of thirty

and sixteen years’ imprisonment, respectively. Petitioner sought a writ of habeas

corpus in the United States District Court for the District of Colorado, alleging

that his due process and equal protection rights were violated because he was

sentenced to consecutive rather than concurrent terms. The district court denied

the petition, holding that Petitioner had filed the petition well after the one-year

statute of limitations under 28 U.S.C. § 2244(d) and had not shown the

extraordinary circumstances necessary to invoke an equitable tolling of the

statute. The court subsequently denied Petitioner’s Rule 59(c) motion to alter or

amend the judgment, and further declined to grant a certificate of appealability

required by 18 U.S.C. § 2253(c) to appeal the dismissal of a § 2254 petition.

Petitioner then applied to this court for a certificate of appealability.

      In order for this court to grant a certificate of appealability, Petitioner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate 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).

      It is true that “§ 2244(d) is not jurisdictional and as a limitation may be


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subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.

denied, 525 U.S. 891 (1998). However, equitable tolling is available only in

extraordinary or exceptional circumstances, and it has historically been limited to

situations where the petitioner “has actively pursued his judicial remedies by

filing a defective proceeding during the statutory period, or where the [petitioner]

has been induced or tricked by his adversary’s misconduct into allowing the filing

deadline to pass.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96

(1990) (footnotes omitted). We have also indicated that actual innocence may be

grounds for equitable tolling of the § 2244(d)(1) limitations period. See Miller,

141 F.3d at 978.

      Petitioner does not allege that he filed a defective proceeding, was induced

by misconduct, or is innocent of the charges brought against him. Instead,

Petitioner claims that two circumstances demand equitable tolling: (1) his

attorney allegedly failed to inform him that his motion for reconsideration was

denied, which constituted ineffective assistance of counsel in violation of the

Sixth Amendment; and (2) he was incarcerated in a Texas prison during the same

time period without access to his personal legal documents and Colorado legal

materials, which resulted in a denial of legal access in violation of the Fourteenth

Amendment.

      Petitioner’s claim of constitutional harm by the ineffective assistance of


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counsel regarding his motion for reconsideration fails because there is no

constitutional right to counsel on discretionary appeals. See Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987). Moreover, we do not consider that alleged

ineffectiveness so extraordinary or prejudicial as to warrant equitable tolling.

Regarding Petitioner’s second argument, we have previously rejected a habeas

petitioner’s request for equitable tolling when the petitioner merely alleged that

his transfer to another state’s prison prohibited him from access to the relevant

statutes and case law. See Miller, 141 F.3d at 978. Such transfers have become

commonplace, and transferee facilities almost universally retain sufficient

information to allow prisoners to submit habeas claims. Petitioner here, as in

Miller, is unspecific about either the lack of access or how it affected his ability

to file a timely petition. See id.

      Following careful review of Petitioner’s briefs, the disposition of the

district court, and the record on appeal, we cannot say that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner.” Slack, 529 U.S. at 484 (quotations

omitted).

      Accordingly, we DENY Petitioner's request to proceed in forma pauperis on

appeal, DENY him a certificate of appealability, and DISMISS the appeal.




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      Entered for the Court


      Monroe G. McKay
      Circuit Judge




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