                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 14 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


HAROLD R. FREEMAN,

          Petitioner-Appellant,

v.                                                     No. 00-5062
                                                 (N. District of Oklahoma)
BOBBY BOONE, Warden, Mack                        (D.C. No. 99-CV-584-H)
Alford C. C., Stringtown, OK; STATE
OF OKLAHOMA,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and 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.




      *
       This order and judgment is not binding precedent, except under the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.
      This case is before the court on Harold Freeman’s request for a certificate

of appealability (“COA”). Freeman seeks a COA so that he can appeal the district

court’s dismissal with prejudice of his 28 U.S.C. § 2254 habeas corpus petition.

See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a

final order denying relief in a § 2254 proceeding unless the petitioner first obtains

a COA). This court denies Freeman’s request for a COA and dismisses the

appeal.

      The district court dismissed Freeman’s § 2254 petition on the ground that it

was filed outside the one-year period of limitations set out in 28 U.S.C. §

2244(d). In so doing, the district court rejected Freeman’s claim that

inadequacies in the Oklahoma Department of Corrections system for providing

inmates access to legal materials, assuming such claimed inadequacies existed,

constituted a state-created impediment to the filing of the § 2254 petition. See id.

§ 2244(d)(1)(B). According to the district court, Freeman had completely failed

to demonstrate that he was prevented from pursuing his § 2254 claims as a result

of the alleged restrictions. The district court further noted that delays in

obtaining transcripts of Freeman’s trial, when such delays were attributed solely

to privately retained state post-conviction counsel, did not amount to a state-

created impediment to the timely filing of a § 2254 petition. Cf. Coleman v.

Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an


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attorney in state post-conviction proceedings. Consequently, a petitioner cannot

claim constitutionally ineffective assistance of counsel in such proceedings.”). In

addition, because the record clearly demonstrated that Freeman had not diligently

pursued his claims, the district court concluded that he was not entitled to have

the limitations period equitably tolled. See Miller v. Marr, 141 F.3d 976, 978

(10th Cir. 1998) (noting that to be entitled to equitable tolling a petitioner must

demonstrate the existence of extraordinary circumstances over which he had no

control and that conclusory allegations of lack of access to legal materials do not

satisfy that exacting standard). Finally, the district court held that the application

of § 2244(d)’s limitations period to Freeman’s petition, in light of the facts of this

particular case, did not operate as an unconstitutional suspension of the Great

Writ.

        Freeman is entitled to a COA only upon making a substantial showing of

the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Freeman can

make such a showing by demonstrating “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, 120 S. Ct. 1595, 1603-04

(2000) (quotations omitted). Upon review of the entire record in this case, we

conclude, for substantially those reasons set out in the district court order of


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March 9, 2000, that Freeman cannot make the necessary showing. Because

Freeman has not made a substantial showing of the denial of a constitutional

right, he is not entitled to a COA. See 28 U.S.C. § 2253(c)(2). Accordingly, this

court DENIES Freeman’s request for a COA and DISMISSES the appeal.

                                              ENTERED FOR THE COURT:



                                              Michael R. Murphy
                                              Circuit Judge




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