                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            MAR 29 2001
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 DOUG E. JONES,

                Petitioner-Appellant,                      No. 00-5195
           v.                                            (N.D. Oklahoma)
 STEVE KAISER, Warden,                               (D.C. No. 99-CV-763-K)

                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)(c); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

       Doug E. Jones, a prisoner in the custody of the Oklahoma Department of

Corrections proceeding pro se, seeks to appeal the district court’s dismissal of his

habeas petition, filed pursuant to 28 U.S.C. § 2254. The district court ruled that,


       *
        This order and judgment is not binding precedent, except under the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.
under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), Mr.

Jones’s petition was untimely.

       The record indicates that Mr. Jones was convicted after a jury trial of

possession of a controlled dangerous substance after former conviction of a

felony. After the Mayes County District Court sentenced him to 101 years’

imprisonment, he appealed to the Oklahoma Court of Criminal Appeals, which

affirmed his conviction and sentence on November 26, 1996. On May 12, 1997,

the United States Supreme Court denied Mr. Jones’s petition for a writ of

certiorari.

       Mr. Jones filed an application for post-conviction relief in the state district

court on February 17, 1998. After that court denied relief, he again appealed to

the Oklahoma Court of Criminal Appeals. On December 18, 1998, that court

affirmed the denial of post-conviction relief.

       Mr. Jones subsequently filed his federal habeas petition on September 9,

1999. In ruling that the petition was untimely, the district court reasoned as

follows: Mr. Jones’ state-court conviction became final on May 12, 1997, when

the Supreme Court denied his petition for certiorari. Pursuant to 28 U.S.C. §

2244(d)(1), Mr. Jones had until May 12, 1998, to file his federal habeas petition.

Under § 2244(d)(2), the statute of limitations was tolled during the pendency of

his state post-conviction claim (from February 17, 1997, until December 18,


                                          -2-
1998). Thus, after the Oklahoma Court of Criminal Appeals affirmed the denial

of post-conviction relief (on December 18, 1998), eighty-five days remained on

the one-year statute of limitations. Accordingly, Mr. Jones had until March 13,

1999, to file his federal habeas petition.

       Because Mr. Jones’s federal habeas petition was not filed until September

9, 1999, approximately six months beyond the deadline, the district court ruled

that it should be dismissed as untimely. The court further concluded that

equitable tolling was not warranted.

       In his application for a certificate of appealability, Mr. Jones does not

challenge the district court’s conclusion that his habeas petition was not filed

within the one-year deadline established by § 2244(d)(1). However, as in the

district court proceedings, he contends that the statute should be equitably tolled

because he received ineffective assistance of counsel in the state post-conviction

proceedings. He also maintains that he is actually innocent. We are not

convinced by Mr. Jones’s arguments.

       As the district court noted, there is no constitutional right to counsel in

post-conviction proceedings.      See Pennsylvania v. Finley , 481 U.S. 551, 555

(1987). As a result, the fact that a habeas petitioner was unaware of the statute of

limitations is not sufficient to warrant equitable tolling.   See Miller v. Marr , 141

F.3d 976, 978 (10th Cir. 1998). Although equitable tolling may be appropriate


                                              -3-
when a habeas petitioner diligently pursues his claims and the delay is caused by

circumstances beyond his control, there is no indication that such factors are

present. In particular, Mr. Jones has failed to explain why he did not file his

federal habeas petition until September 9, 1999, more than nine months after the

conclusion of state post-conviction proceedings on December 18, 1998.

       As to actual innocence, Mr. Jones notes that the evidence at trial indicated

that the syringe in which law enforcement officials discovered methamphetamine

was placed on a dresser under his wife’s control. Mr Jones does acknowledge

that his wife testified that he was involved in drug trafficking and that he had

access to the syringe. However, he cites a state statute, Okla. Stat. tit. 22 § 742,

that provides that the testimony of accomplices must be corroborated.

       These arguments also do not establish grounds for equitable tolling.    See

Lucidore v. New York State Div. of Parole     , 209 F.3d 107, 114 (2d Cir. 2000) (“In

order to demonstrate actual innocence in a so-called collateral proceeding, a

petitioner must present new reliable evidence that was not presented at trial and

show that it is more likely than not that no reasonable juror would have found

[him] guilty beyond a reasonable doubt.”) (internal quotations omitted, alteration

in original).

The sections of the trial transcript discussed by Mr. Jones indicate only that the

case against him was circumstantial; they do not show that he was innocent.


                                            -4-
Moreover, the Oklahoma statute regarding accomplice testimony does not

establish that the state infringed his federal constitutional rights by relying on his

wife’s testimony. See Scrivner v. Tansy , 68 F.3d 1234, 1239 (10th Cir. 1995)

(discussing cases holding that “a jury may convict based on the uncorroborated

testimony of a co-conspirator so long as the testimony is not incredible on its face

and is otherwise capable of establishing guilt beyond a reasonable doubt” and that

“state laws requiring corroboration do not implicate constitutional concerns that

can be addressed on habeas review”) (internal quotation marks and citations

omitted).

      Accordingly, we DENY Mr. Jones’s motion to proceed in forma pauperis,

DENY his request for a certificate of appealability for substantially the same

reasons set forth in the district court’s order, and DISMISS this appeal.



                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge




                                          -5-
