                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 9, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 05-8128
                                                   (D.C. No. 04-CV-289-J)
 v.
                                                    (D.C. No. 01-CR-52-J)
                                                         (W yoming)
 DEREK A . FREDETTE,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Derek Fredette, a federal prisoner proceeding pro se, 1 appeals the district

court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. The district court held the motion was not timely filed with respect to

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      1
         Because he is proceeding pro se, we review M r. Fredette’ s pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
M r. Fredette’s ineffective assistance of counsel claims. The court addressed M r.

Fredette’s timely claim that his sentence was invalid in light of Blakely v.

Washington, 542 U.S. 296 (2004), but held that Blakely was not retroactively

applicable. 2 M r. Fredette appeals only the timeliness ruling. For the following

reasons, we affirm.

      A jury convicted M r. Fredette on one count of conspiring to commit mail

and wire fraud in violation of 18 U.S.C. § 371, one count of wire fraud in

violation of 18 U.S.C. § 1343, and one count of mail fraud in violation of 18

U.S.C. § 1341. The district court sentenced him to sixty months imprisonment on

the first count and twenty-four months on the second and third counts, the latter

to be served concurrently to each other but consecutively to the sixty-month

sentence. The court ordered him to pay restitution in the amount of $743,360.

W e affirmed, United States v. Fredette, 315 F.3d 1235 (10th Cir. 2003), and on

M ay 19, 2003, the Supreme Court denied his petition for a writ of certiorari,

Fredette v. United States, 538 U.S. 1045 (2003). M r. Fredette filed the present §

2255 motion on October 15, 2004.

      M r. Fredette’s § 2255 motion is governed by the Antiterrorism and



      2
        The district granted M r. Fredette’s application for a certificate of
appealability but denied his motion for leave to proceed in form a pauperis, which
he renews on appeal. Because M r. Fredette has established “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),
we grant the motion to proceed ifp.

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Effective Death Penalty Act (AEDPA ), which establishes a one-year limitation

period for federal prisoners seeking habeas relief. See 28 U.S.C. § 2255. The

one-year period began to run in M r. Fredette’s case on M ay 19, 2003, the date on

which the Supreme Court denied certiorari. See United States v. Burch, 202 F.3d

1274, 1278-79 (10th Cir. 2000). He therefore had until M ay 19, 2004 to file his §

2255 motion. M r. Fredette’s filing on October 15, 2004 was therefore facially out

of time.

      In his reply to the government’s response to his § 2255 motion, M r.

Fredette contended the AEDPA ’s one-year period of limitation should be tolled

from M ay 19 until September 25, 2003. Section 2255 provides that the one-year

limitation period

      shall run from the latest of – (1) the date on which the judgment of
      conviction becomes final; [or] (2) the date on which the impediment to
      making a motion created by governmental action in violation of the
      Constitution or laws of the United States is removed, if the movant was
      prevented from making a motion by such governmental action.

28 U.S.C. § 2255 (emphasis added). M r. Fredette contended the government

created an impediment to his filing a motion by denying him access to legal

materials in violation of his constitutional right to access the courts during that

time by transferring him through as many as six different prison facilities. Rec.

vol I, tab 4 at 3-4. Even if M r. Fredette was denied access to any legal research

materials whatsoever between M ay 19 and September 25, 2003, nonetheless, he

has failed to show as required by this statutory tolling provision how this actually

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prevented him from filing his § 2255 motion in the months remaining before M ay

19, 2004.

      Nor are we persuaded M r. Fredette established a claim for general equitable

tolling. See United States v. Willis, 202 F.3d 1279, 1281 n.3 (10th Cir. 2000)

(applying equitable tolling analysis to timeliness of § 2255 motion). Equitable

tolling is available “only in rare and exceptional circumstances,” such as when a

prisoner is actually innocent, when an adversary’s conduct – or other

uncontrollable circumstances – prevents him from timely filing, or when he

actively pursues judicial remedies but files a defective pleading during the

statutory period. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citations

and quotation marks omitted). “Simple excusable neglect is not sufficient,” and

“a petitioner must diligently pursue his federal habeas claims.” Id. (citation

omitted). “[A] claim of insufficient access to relevant law . . . is not enough to

support equitable tolling,” id. (citation omitted), particularly where, as here, it

was for a relatively short period of time. As previously noted, M r. Fredette made

no showing that he exercised due diligence in pursing his federal claims.

      In any event, even if we were to toll the one-year period of limitation

between M ay 19 and September 25, 2003, as M r. Fredette requests, his motion

would still not be timely filed. The district court found that M r. Fredette

“submitted” his § 2255 motion on September 25, 2004, but failed to comply with

the provisions of the prison mailbox rule. “The prison mailbox rule . . . holds that

                                          -4-
a pro se prisoner’s [filing] will be considered timely if given to prison officials

for mailing prior to the filing deadline, regardless of when the court itself

receives the documents.” Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir.

2005) (internal citations omitted); see also United States v. Gray, 182 F.3d 762,

765 n. 4 (10th Cir. 1999) (holding that prison mailbox rule applies to § 2255

motions).

      An inmate can establish the date on which he or she gave the papers to be
      filed with the court to a prison official in one of two ways. First, if the
      prison has a legal mail system, then the prisoner must use it as the means of
      proving compliance with the mailbox rule. The second mechanism for
      establishing a filing date for purposes of the mailbox rule must be used if
      the inmate does not have access to a legal mail system – or if the existing
      legal mail system is inadequate to satisfy the mailbox rule. In either of
      these circumstances, the mandatory method by which a prisoner proves
      compliance with the mailbox rule is to submit a declaration in compliance
      with 28 U .S.C. § 1746 or notarized statement setting forth the [filing’s]
      date of deposit with prison officials and attest that first-class postage was
      pre-paid.

Price, 420 F.3d at 1165 (internal citations and quotations omitted).

      M r. Fredette did not claim, nor did he show, that he utilized his prison’s

legal mail system. See U nited States v. Leonard, 937 F.2d 494, 495 (10th Cir.

1991) (holding that prison mailbox rule does not apply to regular prison mail

system). Nor did he submit a notarized declaration stating the date on which he

deposited his motion with prison officials to be mailed. Accordingly, October 15,

2004, the date on which the district court received the motion, is the date the

motion was effectively filed. Even if the one-year filing deadline was tolled until



                                          -5-
September 25, 2003, therefore, M r. Fredette’s motion filed more than a year later

on October 15, 2004 is still untimely.

      For the aforementioned reasons, we GR ANT M r. Fredette’s motion for

leave to proceed ifp and AFFIRM the district court’s order dismissing his § 2255

motion as untimely.

                                         Entered for the Court


                                         Stephanie K. Seymour
                                         Circuit Judge




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