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


JOHNNY AUSTIN,

          Petitioner-Appellant,
                                                          No. 00-6453
v.                                                 (W. District of Oklahoma)
                                                   (D.C. No. 00-CV-1302-M)
JAMES L. SAFFLE, Warden,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, 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 matter is before the court on Johnny Austin’s   pro se request for a

certificate of appealability (“COA”). Austin seeks a COA so he can appeal the


      *
       This order and judgment is not binding precedent, except under the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.
district court’s dismissal of his 28 U.S.C. § 2254 petition.   See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from a final order

disposing of a § 2254 petition unless the petitioner first obtains a COA). Austin

also seeks to proceed in forma pauperis on appeal. Because Austin has not made

a substantial showing of the denial of a constitutional right, he is not entitled to a

COA and his appeal is dismissed.       See id. § 2253(c)(2).

       Austin was convicted in Oklahoma state court of manslaughter in the first

degree and child beating. It is clear from the record that Austin’s conviction

became final before April 24, 1996. Austin filed an application for post-

conviction relief with the state district court on December 26, 1995. The state

district court denied the application and the Oklahoma Court of Criminal Appeals

affirmed the denial on May 13, 1996. Austin did not file the instant § 2254

habeas petition until July 26, 2000. The petition was referred to a magistrate

judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B).

       On September 21, 2000, Respondent filed a motion to dismiss Austin’s

habeas petition and a brief in support thereof. Because Austin’s Oklahoma state

conviction became final prior to the enactment of the Antiterrorism and Effective

Death Penalty Act ("AEDPA"), Respondent argued that Austin’s § 2254 petition

should have been filed prior to April 24, 1997.      See Adams v. LeMaster , 223 F.3d

1177, 1180 (10th Cir. 2000) (reiterating that a state prisoner generally has one


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year from the effective date of the AEDPA to file a § 2254 habeas petition).

Respondent conceded that the one-year limitations period was tolled for a period

of nineteen days while Austin’s application for state post-conviction relief was

pending before the Oklahoma Court of Criminal Appeals, but argued that the §

2254 petition should, therefore, have been filed no later than May 12, 1997.     See

Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998) (holding that one-year

limitations period is tolled during the period of time petitioner spends properly

pursuing state post-conviction relief). Respondent then argued that Austin’s

petition was time-barred because it was not filed until July 26, 2000.

       Austin filed a response to the motion to dismiss. In that response, he did

not assert that his petition was timely, but argued that the one-year AEDPA

statute of limitations should be equitably tolled because he had no access to

necessary legal materials until he was transferred to the Lawton Correctional

Facility in December 1999. Austin also made an unsupported allegation that he

was actually innocent of the crimes to which he pleaded guilty.

       In her report and recommendation, the magistrate judge relied, in part, on

this court’s decision in   Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), to

conclude that Austin had failed to identify any circumstances that would support

an equitable tolling of the limitations period. The report and recommendation

also noted that Austin’s § 2254 petition was filed more than seven months after


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he obtained access to the legal materials at the Lawton Correctional Facility. The

magistrate concluded that Austin had not diligently pursued his federal claims

and, therefore, was not entitled to equitable tolling.   See Marsh v. Soares , 223

F.3d 1217, 1220 (10th Cir. 2000) (holding equitable tolling “is only available

when an inmate diligently pursues his claims and demonstrates that the failure to

timely filed was caused by extraordinary circumstances beyond his control”).

       Austin filed timely objections to the report and recommendation. Although

the district court considered Austin’s objections, the court adopted the report and

recommendation and dismissed Austin’s § 2254 petition.

       In his application for a COA, Austin does not argue that the magistrate

judge miscalculated the one-year period. Instead, Austin renews the argument

made in his objection to the report and recommendation that his inability to

access legal materials supports the tolling of the one-year limitations period.

       Before he is entitled to a COA, Austin must make a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Austin may

make this showing by demonstrating the issues raised are debatable among

jurists, a court could resolve the issues differently, or that the questions presented

deserve further proceedings.     See Slack v. McDaniel , 529 U.S. 473, 483-84

(2000). This court has reviewed Austin’s application for a COA, his appellate

brief, the magistrate judge’s report and recommendation, the district court’s order


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dated December 8, 2000, and the entire record on appeal. That review clearly

demonstrates the district court’s dismissal of Austin’s § 2254 petition as untimely

is not deserving of further proceedings or subject to a different resolution on

appeal. Accordingly, this court     denies Austin’s request for a COA for

substantially those reasons set forth in the district court’s order and the

magistrate’s report and recommendation and        dismisses this appeal. Austin’s

request to proceed on appeal      in forma pauperis is granted .

                                          ENTERED FOR THE COURT:



                                          Michael R. Murphy
                                          Circuit Judge




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