*

 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); 10th Cir. R. 34.1 (G). The cause therefore

is ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 31 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROGER A. MARSH,

Petitioner - Appellant,

vs.

RICK SOARES; ATTORNEY

GENERAL FOR THE STATE OF

COLORADO,

Respondents - Appellees.

No. 00-1141

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 00-Z-54)

Submitted on the briefs:*

Roger A. Marsh, pro se.

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

KELLY, Circuit Judge.
1Although the petition was not actually file stamped until January 11, 2000,

it was signed on December 29, 1999. Liberal application of the mailbox rule, see

Houston v. Lack, 487 U.S. 266, 270 (1988), causes us to treat the petition as

placed in the hands of prison authorities on the same day it was signed.

- 2 -

Petitioner-Appellant Roger Marsh, an inmate appearing pro se, seeks to

appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254. The district

court dismissed the petition as time barred and denied a certificate of

appealability. We grant a certificate of appealability and affirm.

In 1986, Mr. Marsh was convicted in Colorado state court of first degree

assault, kidnaping, aggravated robbery, and aggravated motor vehicle theft. He

was sentenced to a term of 88 years imprisonment, and his conviction was upheld

on direct appeal. Mr. Marsh’s first state court post-conviction motion, pending

from 1992 until 1995, was unsuccessful. On July 18, 1996, Mr. Marsh filed his

original habeas petition in federal district court. This petition was dismissed

without prejudice on May 13, 1997, for failure to exhaust state remedies. Mr.

Marsh properly filed a second state post-conviction motion on January 30, 1998,

which was pending in the state courts until November 23, 1999, when the

Colorado Supreme Court denied certiorari. The instant habeas petition was not

filed until December 29, 1999.1

Mr. Marsh’s conviction became final before the effective date of AEDPA

and, therefore, the one year period for filing his federal habeas petition began to
- 3 -

run on April 24, 1996. See 28 U.S.C. § 2244(d)(1); see also Hoggro v. Boone,

150 F.3d 1223, 1225 (10th Cir. 1998). Eighty-four days had elapsed before his

first federal habeas was filed on July 18, 1996. The district court held that the

statute should be tolled during the time the federal habeas petition was pending. 

See 28 U.S.C. § 2244(d)(2) (requiring tolling during the pendency of applications

for “State post-conviction or other collateral review” (emphasis added)). 

The question of whether the tolling provisions of § 2244(d)(2) apply to

federal habeas petitions is a matter of first impression in this circuit. We note

that the two circuits to have previously addressed this issue came to opposite

conclusions. See Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000) (holding that the

“other collateral review” provision of § 2244(d)(2) encompasses federal review); 

see also Barrett v. Yearwood, 63 F. Supp. 2d 1245 (E.D. Cal. 1999) (same); but

see Jones v. Morton, 195 F.3d 153, 158-159 (3d Cir. 1999) (§ 2244(d)(2) refers

exclusively to state applications); Sperling v. White, 30 F. Supp. 2d 1246 (C.D.

Cal. 1998) (same). Because resolution of the issue is not critical to our

disposition of this case, we assume without deciding that the one year time

limitation was properly tolled while Mr. Marsh’s federal petition was pending

from July 18, 1996 through May 13, 1997.

Mr. Marsh did not return to state court to exhaust until the filing of his

second post-conviction application on January 30, 1998, after 261 more days had
- 4 -

elapsed. When the Colorado Supreme Court denied certiorari on November 23,

1999, he was left with only 20 days to file his federal habeas petition, i.e. until

December 13, 1999. Therefore, Mr. Marsh’s second habeas petition filed on

December 29, 1999 was time-barred by AEDPA’s one year statute of limitations. 

In an attempt to avoid the limitations period, Mr. Marsh offers two

arguments: (1) his second federal habeas petition should “relate back” to the July

18, 1996 filing date of his first petition; and (2) the delay caused by prison law

clerks, the closing of the prison law library, and his own ignorance of the law are

sufficient factors to equitably toll the limitations period, see Miller v. Marr, 141

F.3d 976, 978 (10th Cir. 1998). We address each argument in turn.

Mr. Marsh points to the Supreme Court’s decision in Stewart v. Villareal,

523 U.S. 637 (1998) to support his relation back argument. However, Stewart did

not address the timeliness argument under § 2244(d), but dealt with the successive

habeas provisions of § 2244(b). In Stewart, Mr. Villareal filed several federal

habeas petitions before AEDPA came into effect and the district court dismissed

all three for failure to exhaust state remedies. In 1997, he attempted to file

another habeas petition, but the district court claimed that it lacked jurisdiction to

hear the petition because it was successive under § 2244(b). The Ninth Circuit

held that the petition was not successive and the Supreme Court affirmed. In

doing so, the Court held that a habeas petition filed after a prior petition had been
- 5 -

dismissed without prejudice for failure to exhaust state court remedies was not a

successive petition under § 2244(b). See Stewart, 523 U.S. at 645; see also

McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997) (same). Neither

Stewart nor McWilliams are instructive in analyzing § 2244(d). See Nyland v.

Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (noting that Stewart did not address

“whether a previous petition dismissed without prejudice remained pending for

the purpose of having a later filed petition relate back to it.”); Romo v. Oklahoma

Dep’t of Corrections, 216 F.3d 1202, 1203 (10th Cir. 2000) (noting that “[t]he

issue of timeliness was not before the McWilliams court.”). 

Fed. R. Civ. P. 15(c) permits the relation back of an “amendment of a

pleading.” However, Mr. Marsh’s second habeas petition was more than an

amendment; it was a separate filing, some three years after the first petition. “[A]

separately filed claim, as opposed to an amendment or a supplementary pleading,

does not relate back to a previously filed claim.” Benge v. United States, 17 F.3d

1286, 1288 (10th Cir. 1994) (citation omitted). 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.” 

Nyland, 216 F.3d at 1266. As the Fifth Circuit convincingly noted in Graham v.

Johnson, 168 F.3d 762 (5th Cir. 1999):

“[I]f § 2244(d) were interpreted as Petitioner argues, the

result would be impractical. A habeas petitioner could
- 6 -

file a non-exhausted application in federal court within

the limitations period and suffer a dismissal without

prejudice. He could then wait decades to exhaust his

state court remedies and could also wait decades after

exhausting his state remedies before returning to federal

court to ‘continue’ his federal remedy, without running

afoul of the statute of limitations.” Construing an

application filed after a previous application is

dismissed without prejudice as a continuation of the first

application for all purposes would eviscerate the

AEDPA limitations period and thwart one of AEDPA’s

principal purposes.

Id. at 780 (citation omitted). We therefore join with all the circuit courts which

have addressed this issue, and hold 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. See Warren v. Garvin, No. 99-2616,

2000 WL 955421 (2d Cir. July 11, 2000); Nyland; Jones, 195 F.3d at 160-61;

Graham, 168 F.3d at 775-80; Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.

1999).

We now turn to Mr. Marsh’s claim for equitable tolling of the statute of

limitations. In Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), we recognized

that § 2244(d) is not jurisdictional, but subject to equitable tolling. However, this

equitable remedy is only available when an inmate diligently pursues his claims

and demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control. See id.; see also Steed v. Head, No. 99-13903,
- 7 -

2000 WL 1028509, at *2 (11th Cir. July 26, 2000); Harris v. Hutchinson, 209

F.3d 325, 330 (4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000);

Calderon v. United States Dist. Court for the Cent. Dist. of Cal. (Kelly), 163 F.3d

530, 535 (9th Cir. 1998) (en banc); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.

1998); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d

Cir. 1998). With the exception of the eight month delay following the dismissal

of his first habeas petition, Mr. Marsh pursued his claims diligently. However, he

has failed to show any extraordinary circumstance for his failure to comply with

AEDPA’s one year statute of limitations. 

Mr. Marsh gives three reasons why equitable tolling should apply in this

case. First, “his ignorance of the law completely robs him of any opportunity to

fend for himself or otherwise gain equal access to the courts” and his failure to

timely file should therefore be viewed as “excusable neglect.” Aplt. Br. at 16(a). 

However, it is well established that “ignorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.” Fisher v.

Johnson, 174 F.3d 710, 714 (5th Cir. 1999); see also Smith, 208 F.3d at 18

(petitioner’s pro se status does not warrant equitable tolling); Miller, 141 F.3d at

978 (equitable tolling not justified by fact that petitioner simply did not know

about AEDPA time limitation). Mr. Marsh has not raised any convincing reason

why we should depart from this well established rule.
- 8 -

Second, Mr. Marsh alleges that his January 30, 1998 state post-conviction

application was prepared by a prison inmate law clerk, who took approximately

170 days to prepare the application. Mr. Marsh contends that he should not be

held responsible for delays caused by his reliance on the prison legal access

program, and the time limitation should be tolled for the 170 days when the

application was out of his hands. We disagree. As the district court convincingly

noted: “Mr. Marsh chose to rely upon assistance from the prison legal access

attorney and an inmate law clerk despite the fact that he was raising in the state

courts only the unexhausted claims he already had raised in federal court.” R.

doc. 11, at 5-6. The fact that an inmate law clerk was assisting in drafting the

state petition does not relieve Mr. Marsh from the personal responsibility of

complying with the law. See Henderson v. Johnson, 1 F. Supp. 2d 650, 655 (N.D.

Tex. 1998) (noting that although inmate had received assistance from fellow

inmate, he could have filed the petition himself at any time); see also Steed, 2000

WL 1028509, at *2 (holding that attorney miscalculation of AEDPA time period

did not justify equitable tolling). 

Finally, Mr. Marsh asserts that between the date he exhausted his claims in

state court (November 23, 1999) and the date he filed the instant habeas petition

(December 29, 1999), the prison law library was closed for 15 days for holidays

and vacations. However, even assuming that such a short closing of a prison law
- 9 -

library could be considered “extraordinary,” Mr. Marsh has not shown how this

lack of access caused his delay in filing. See Miller, 141 F.3d at 978. The claims

he was asserting were the same as those already presented in his first habeas

petition and then submitted to the state for purposes of exhaustion. Therefore,

Mr. Marsh has failed to show that equitable tolling should apply.

We GRANT a certificate of appealability, GRANT leave to proceed in

forma pauperis, and AFFIRM the decision of the district court dismissing the

petition as time barred.