                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUL 23 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 CASPER JACKSON,

           Petitioner-Appellant,
 vs.                                                    No. 98-6419
                                                    (D.C. No. 98-CV-81)
 STEVE HARGETT,                                         (W.D. Okla.)

           Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Jackson, an inmate appearing pro se, appeals from the district court’s

dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

2254. The magistrate judge, whose findings and recommendations were adopted

by the district court, found that the petition was untimely under 28 U.S.C. §

2244(d), and that equitable tolling was not appropriate because Mr. Jackson failed


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
to diligently pursue his claims. The district court also denied a certificate of

appealability.

      Mr. Jackson pled guilty to state offenses and was sentenced on May 1,

1987. He did not appeal. On January 22, 1997, he applied for state post-

conviction relief, arguing that his appointed counsel failed to file a motion to

withdraw his guilty plea as requested; counsel was ineffective; and the standard

by which his competency was determined was found unconstitutional in Cooper v.

Oklahoma, 517 U.S. 348 (1996). The trial court denied relief and the Oklahoma

Court of Criminal Appeals affirmed on May 8, 1997. Mr. Jackson then filed his

federal petition on January 15, 1998.

      State prisoners whose convictions became final before April 24, 1996 had

until April 23, 1997 to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1);

United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). The one-year

limitations period in § 2244(d)(1) is tolled by time spent pursuing post-conviction

relief in state courts. See § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1225

(10th Cir. 1998). Thus, in order to be timely, Mr. Jackson’s petition should have

been filed by August 7, 1997.

      However, this limitations period is procedural rather than jurisdictional and

thus is subject to equitable tolling where extraordinary circumstances beyond a

prisoner’s control make it impossible to file a petition on time. See Calderon v.


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United States District Court, 163 F.3d 530, 541 (9th Cir. 1998) (en banc), cert.

denied, 119 S. Ct. 1377 (1999). As we stated in Miller v. Marr, 141 F.3d 976

(10th Cir.), cert. denied, 119 S. Ct. 210 (1998), “[t]he one-year time period begins

to run in accordance with individual circumstances that could reasonably affect

the availability of the remedy, but requires inmates to diligently pursue claims.”

Id. at 978 (citations omitted).

      Mr. Jackson provides no explanation for his failure to file his petition by

August 7, 1997. An allegation of incompetency at the time of his state court

conviction, almost eleven years prior to filing his federal habeas petition, does not

suffice. We agree with the district court that he has failed to diligently pursue his

claims, and thus conclude that his petition is untimely pursuant to § 2244(d)(1).

Because Mr. Jackson has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(b)(2), we DENY his request for a

certificate of appealability and DISMISS the appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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