                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    December 3, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 07-7070
                                              (D.C. Nos. CIV-07-218-FHS and
 CHARLES WAYNE BUCKALOO,
                                                      CR-92-38-FHS)
                                                        (E.D. Okla.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Charles Wayne Buckaloo, a federal prisoner proceeding pro se, seeks to

challenge his imprisonment in a 28 U.S.C. § 2255 habeas petition. The district

court dismissed the petition as time-barred, and Mr. Buckaloo now seeks before

us a certificate of appealability (“COA”) to appeal the district court’s order. For

substantially the same reasons set forth by the district court in dismissing the

petition, we deny Mr. Buckaloo’s application for a COA and his request for leave

to proceed in forma pauperis.

                                      *   *   *


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In 1992, Mr. Buckaloo was indicted on one count of being a felon in

possession of a firearm, see 18 U.S.C. § 922(g), and one count of acquiring a

firearm by false statement, see id. at § 922(a)(6). A jury found him guilty on both

scores, and the district court sentenced him to concurrent prison terms of 262

months on the first count and 33 months on the second. Mr. Buckaloo appealed

his conviction and sentence to this court; we upheld both in March 1994. See

United States v. Buckaloo, 1994 WL 95969 (10th Cir. 1994).

      In June 2007, Mr. Buckaloo initiated this Section 2255 action alleging,

among other things, that he was innocent of the charges on which he was

convicted, that he was denied a fair trial, and that he received ineffective

assistance of counsel at trial. Additionally, during the district court’s

proceedings, Mr. Buckaloo filed an “Affidavit of Bias,” which the district court

judge construed as a motion to disqualify him from consideration of the Section

2255 petition. The district court denied the motion to disqualify, and then

proceeded to dismiss with prejudice Mr. Buckaloo’s Section 2255 petition as

time-barred.

      Mr. Buckaloo then proceeded to seek a COA from this court to appeal the

disposition of his habeas petition. 1 We may issue a COA only if the petitioner

makes “a substantial showing of the denial of a constitutional right.” See 28

      1
         Mr. Buckaloo does not appear to have sought a COA in connection with
the district court’s denial of his motion to disqualify but, in any event, we find in
the record before us no colorable basis for that motion.

                                         -2-
U.S.C. § 2253(c)(2). Moreover, where the district court has dismissed a habeas

petition on procedural grounds, a COA should be issued only when “the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); see also

Omar-Muhammad v. Williams, 484 F.3d 1262, 1264 (10th Cir. 2007).

      In this case, we have no doubt that the district court ruled correctly in

dismissing Mr. Buckaloo’s Section 2255 petition as time-barred. Pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner

typically has one year from the date on which his conviction becomes final to file

a motion for habeas corpus relief. See 28 U.S.C. § 2255. But where, as here, the

conviction became final prior to the enactment of AEDPA, the prisoner had one

year from the date of AEDPA’s enactment – in other words, until April 24, 1997

– to file a Section 2255 petition. See United States v. Hurst, 322 F.3d 1256,

1260-61 & n. 4 (10th Cir. 2003); United States v. Simmonds, 111 F.3d 737, 746

(10th Cir. 1997), overruled in part on other grounds by Hurst, 322 F.3d at 1261

n.4. As such, Mr. Buckaloo’s filing in June 2007 was more than 10 years late and

thus precluded by statute.

      Of course, the AEDPA period of limitation may be subject to equitable

tolling in extraordinary circumstances. See Miller v. Marr, 141 F.3d 976, 978

                                          -3-
(10th Cir. 1998). Accordingly, Mr. Buckaloo argues on appeal that he did not file

his motion sooner because he was not aware of Section 2255 until June 2007,

because of his mental and medical condition, and because of his assignment to

solitary confinement for extended periods. Unfortunately, Mr. Buckaloo failed to

present any of these arguments to the district court and thus waived them. See

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (refusing to reach

petitioner’s equitable tolling argument because he did not raise it in the district

court).

      Even were we to consider these contentions, moreover, we would still find

that Mr. Buckaloo’s circumstances do not warrant equitable tolling. We have

consistently held that “a petitioner must diligently pursue his federal habeas

claims; a claim of insufficient access to relevant law, such as AEDPA, is not

enough to support equitable tolling.” Id. Accordingly, Mr. Buckaloo’s assertion

that he only recently learned of Section 2255’s existence cannot qualify him for

equitable tolling. As for the possibility that Mr. Buckaloo’s medical or mental

condition prevented him from pursuing such relief, we have no medical records or

other evidence before us to confirm his assertion of incapacity over a period

spanning more than ten years. To the contrary, Mr. Buckaloo himself states that

his now-restored mental capacity is a result of treatment that he began receiving

fully six years ago. Neither does Mr. Buckaloo's assignment to solitary

confinement excuse his delay. We have previously held that, although

                                         -4-
“confinement in administrative segregation may qualify as an extraordinary

circumstance beyond [a prisoner’s] control, . . . equitable tolling is justified only

where the prisoner has shown that despite his segregated confinement he

diligently pursued his habeas claims and his confinement prevented him from

filing on time.” Green v. Kansas, 190 Fed. Appx. 682, 685 (10th Cir. 2006)

(unpub.). Mr. Buckaloo has failed to make any such showing before us. 2

      Finally, Mr. Buckaloo seeks leave to proceed in this court in forma

pauperis. To qualify, an appellant “must show a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Because Mr. Buckaloo has failed to

raise any such “reasoned, nonfrivolous” argument, we deny his motion.

                                       *   *     *

      We agree with the district court that Mr. Buckaloo’s habeas petition is

time-barred and deny Mr. Buckaloo’s request for a COA and motion to proceed

before this court in forma pauperis. This appeal is dismissed.

      2
         We also note that Mr. Buckaloo argues that the application of AEDPA to
his case constitutes impermissible retroactive application of the laws, and he cites
a number of cases predating AEDPA to argue that his petition should not have
been time-barred. But it is precisely to avoid impermissible retroactive
application of AEDPA’s time bar provisions that, for prisoners whose convictions
predate AEDPA, we begin counting the one-year period for filing Section 2255
petitions from the date of AEDPA’s enactment. See Simmonds, 111 F.3d at 744-
46.

                                           -5-
ENTERED FOR THE COURT



Neil M. Gorsuch
Circuit Judge




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