                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 2 2001
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DAVID BEHRENS,

              Petitioner-Appellant,

    v.                                                 No. 00-6180
                                                   (D.C. No. 99-CV-900)
    GARY L. GIBSON, Warden,                            (W.D. Okla.)

              Respondent-Appellee.


    DAVID BEHRENS,

              Petitioner-Appellant,

    v.                                                 No. 00-6203
                                                 (D.C. No. 93-CV-1688-W)
    DAN REYNOLDS,                                      (W.D. Okla.)

              Respondent-Appellee.


                          ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

       Petitioner seeks review of two district court orders denying his petition for

a writ of habeas corpus under 28 U.S.C. § 2254: one seeking § 2254 relief

directly (our No. 00-6180) and the other seeking to “reopen” his 1993 petition for

a writ of habeas corpus, which was dismissed for failure to exhaust state remedies

(our No. 00-6203). The matter is now before this court on petitioner’s

applications for certificates of appealability (COA). To qualify for a COA, a

§ 2254 movant must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To meet this standard, petitioner must show that

his issues are debatable among jurists of reason, subject to a different resolution

on appeal, or deserving of further proceedings.   See Montez v. McKinna ,

208 F.3d 862, 869 (10th Cir. 2000).

       Petitioner was convicted in Oklahoma state court in two separate

prosecutions. He was sentenced in April of 1982 to consecutive terms of

imprisonment of eight, thirty-seven, and ninety-nine years. He did not file a

direct appeal. In 1983 he filed his first state post-conviction application, which

was denied by the state trial court in July of 1984. The Oklahoma Court of


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Criminal Appeals subsequently dismissed that appeal as untimely. He filed his

second state application on April 22, 1997, and the state court denied relief on

April 28. The Oklahoma Court of Criminal Appeals declined jurisdiction over the

appeal from this second application, again on grounds of untimeliness. Petitioner

then sought relief by way of mandamus, which was denied in November of 1997.

See Behrens v. Patterson , 952 P.2d 990, 992 (Okla. Crim. App. 1997). His third

state application was filed shortly thereafter and denied by the state trial court in

February of 1998. The Oklahoma Court of Criminal Appeals affirmed the denial

in June of 1998.

       Petitioner filed his first federal habeas corpus petition in September of

1993. The district court denied relief for failure to exhaust state remedies.

Petitioner appealed and we affirmed.    Behrens v. Reynolds , No. 94-6051,

1994 WL 562016, at **1 (10th Cir. Oct. 13, 1994) (unpublished disposition).

       The present petition was filed in June of 1999, nearly a year after the final

disposition of his third state post-conviction application and well beyond the

grace period established following the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).       See Hoggro v. Boone , 150 F.3d

1223, 1225 (10th Cir. 1998) (where petitioner’s conviction became final before

AEDPA’s effective date, one-year period for filing federal habeas petition began

to run April 24, 1996).   See also 28 U.S.C. § 2244(d)(1).


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       The time during which petitioner’s state habeas application was pending

does not count toward the limitations period.    See 28 U.S.C. § 2244(d)(2). Thus,

the limitations period was tolled until April 28, 1997, when the state trial court

denied his second application. In addition, he is entitled to a tolling period during

which he could have sought an appeal under state law,     see Gibson v. Klinger ,

232 F.3d 799, 804 (10th Cir. 2000), which in petitioner’s case was thirty days.

Although petitioner apparently attempted to appeal, the appeal was not timely

filed. However, as petitioner acknowledges, he did not file his second federal

habeas corpus proceeding until 1999, which was well beyond the AEDPA grace

period, as properly tolled.   1



       Petitioner also argues that the limitations period should be equitably tolled,

claiming, among other factors, lack of access to the prison law library and the fact

that the AEDPA changed two hundred years of federal habeas corpus

jurisprudence (requiring the filing of federal petitions within a fixed time period).

The district court determined, however, that petitioner was not diligent in pursuit

of his habeas claims. We agree. Petitioner waited nine years from the denial of

his first state post-conviction application before filing his first federal

application. After that dismissal was affirmed by this court (for failure to exhaust


1
      There is also no tolling by virtue of the third state post-conviction
proceeding filed in November of 1997 because by then the statutory AEDPA
period had run.

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state remedies), he waited another two and a half years before filing his second

state post-conviction application. Finally, even after his third state post-

conviction action was dismissed, he waited almost a year before filing the federal

habeas petition underlying these appeals.

       Petitioner’s excuses for delayed filings are unpersuasive and sound as

neglect. However, a claim of excusable neglect is insufficient because a

petitioner must diligently pursue his federal habeas corpus claims.      Gibson ,

232 F.3d at 808. Moreover, “a claim of insufficient access to relevant law, such

as AEDPA, is not enough to support equitable tolling.”       Id. (citing Miller v. Marr ,

141 F.3d 976, 978 (10th Cir. 1998)). That petitioner may have learned of the

AEDPA’s filing limitations too late is also unavailing.      See Miller , 141 F.3d

at 978.

       In case No. 00-6203, petitioner also argues that the district court erred in

denying his motion to reopen the 1993 federal habeas action and to amend that

petition. The district court construed this motion as one brought pursuant to

Fed. R. Civ. P. 60(b), which grants to district courts limited authority under which

to reopen final judgments. The only applicable provision under that rule

is section six, which vests power to vacate judgments for “any other reason

justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6).

This power, however, is to be utilized only in extraordinary circumstances.


                                            -5-
See Johnston v. Cigna Corp. , 14 F.3d 486, 493 (10th Cir. 1993). Such motion is

directed to the sound discretion of the district court.    See Cashner v. Freedom

Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996). In addition, the sole purpose of

reopening the judgment in this case was to amend the initial habeas corpus

pleading so that his claims filed in the 1999 federal habeas action could relate

back to the earlier action.     See R. Doc. 24, at 1 (citing Fed. R. Civ. P. 15

and 60(b)).

       Contrary to petitioner’s arguments, the second habeas petition was more

than just a Rule 15 amendment. Rather, it was a separate pleading, filed nearly

six years after the first petition.   See Marsh v. Soares , 223 F.3d 1217, 1219

(10th Cir. 2000) (“Moreover, ‘a § 2254 petition cannot relate back to a previously

filed petition that has been dismissed without prejudice because there is nothing

for the current petition to relate back to.’” (quoting    Nyland v. Moore , 216 F.3d

1264, 1266 (11th Cir. 2000)). The district court did not err in concluding that

“a habeas petition filed after a previous petition has been dismissed without

prejudice for failure to exhaust state remedies does not relate back to the earlier

petition.” Marsh , 223 F.3d at 1220.      See also Rowe v. LeMaster , 225 F.3d 1173,

1175 (10th Cir. 2000) (noting that under state counterpart to Rule 15, state court

did not permit amendment where first habeas proceeding had been reduced to

final judgment).


                                              -6-
       As we have recently held, under Rule 15(c) an untimely amendment to

a § 2255 motion, which by additional facts clarifies or amplifies a claim in the

original motion, may, in the discretion of the district court, relate back to the

original motion only if the original motion was timely filed and if the proposed

amendment does not seek to add a new claim or insert a new theory into the case.

See United States v. Espinoza-Saenz     , 235 F.3d 501, 505 (10th Cir. 2000). In this

case, the first federal habeas action concluded in 1994. Plaintiff’s motion, filed

in 1999, sought to assert separate and distinct claims. The district court did not

abuse its discretion in denying defendant’s request to amend his petition.      See id.

       Petitioner has failed to make a showing in either case sufficient to obtain

a COA. Accordingly, the applications for certificates of appealability are

DENIED, and the appeals are DISMISSED.



                                                        Entered for the Court



                                                        Stephen H. Anderson
                                                        Circuit Judge




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