*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 1 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CALVIN WESLEY RILEY,

Petitioner-Appellant,

v.

TWYLA SNIDER; OKLAHOMA

DEPARTMENT OF CORRECTIONS;

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 99-6339

(D.C. No. CIV-99-343-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, 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 cause is

therefore ordered submitted without oral argument.

Petitioner Calvin Wesley Riley, appearing pro se, seeks a certificate of

appealability to challenge the district court’s order dismissing his 28 U.S.C. §
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2254 petition as untimely. Because Mr. Riley has not made a substantial showing

of the denial of a constitutional right, see 28 U.S.C. § 2253(c), we deny the

request and dismiss his appeal.

Mr. Riley pled guilty on May 19, 1997, to first degree burglary in state

court and was sentenced to ten years imprisonment, three of which were

suspended. He applied for state post-conviction relief, which was denied, and

then appealed to the Oklahoma Court of Criminal Appeals (OCCA), which

rejected the appeal as untimely. Mr. Riley filed a habeas corpus petition in the

district court alleging that he was factually innocent of the crime charged, his

guilty plea had been defective, and his trial counsel was ineffective. The matter

was referred to a magistrate judge, who recommended the petition be denied as

untimely filed under 28 U.S.C. § 2244(d). After consideration of Mr. Riley’s

objections, including the claim of actual innocence, the district court adopted the

recommendation and denied the petition. 

Mr. Riley’s conviction became final on May 29, 1997, for purpose of the

one-year statute of limitations contained in § 2244(d)(1). The time Mr. Riley

spent pursuing state post-conviction relief tolled the running of the limitations

period until December 22, 1997, when the state district court denied the

application. See 28 U.S.C. § 2244(d)(2). His subsequent appeal to the OCCA did

not toll the limitations period, because it was untimely filed. See Hoggro v.

Boone, 150 F.3d 1223, 1227 n.4 (10th Cir. 1998). Consequently, Mr. Riley had
1Mr. Riley claims that requests to transfer to satellite law libraries for

research are “rarely granted,” and that inmate legal research assistance, “while not

prohibited” is “not encouraged.” He does not, however, argue that he ever made a

request to use the satellite library or assert that he sought inmate legal research

assistance but was prevented from utilizing it. 

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until approximately June 24, 1998 to file his petition for habeas relief. He did not

file until March 15, 1999.

Mr. Riley argues the limitations period should be equitably tolled, based on

the inadequacy of legal materials in the prison library, his lack of legal assistance,

and his ignorance of the law.1 Section 2244(d) “is not jurisdictional, and as a

limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978

(10th Cir. 1998). However, inmates must diligently pursue their claims in order

to avail themselves of this tolling. See id.; see also Davis v. Johnson, 158 F.3d

806, 811 (5th Cir.1998) (equitable tolling appropriate only "in rare and

exceptional circumstances"), cert. denied, 119 S. Ct. 1474 (1999); Miller v. New

Jersey State Dept. of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (equitable

tolling applies only where prisoner has diligently pursued claims, but has in some

"extraordinary way" been prevented from asserting his rights). Mr. Riley presents

us with no evidence that he either diligently pursued his claims or was prevented

in some extraordinary way from doing so. Rather, it appears to this court that, as

in Miller, 141 F.3d at 978, he was simply unaware that the months he spent

pursuing his time-barred appeal before the OCCA were not tolled for the purposes
2Mr. Riley’s conclusory allegations regarding his lack of access to legal

materials are insufficient to justify equitable tolling. See Miller v. Marr, 141 F.3d

976, 978 (10th Cir. 1998) (“It is not enough to say that the [prison] lacked all

relevant statutes and case law or that the procedure to request specific materials

was inadequate.”). Nor are his allegations regarding the poor quality of his legal

assistance and his own ignorance of the law. See, e.g., Fadayiro v. United States,

30 F. Supp.2d 772, 781 (D.N.J. 1998) (“Ignorance of the law does not justify

equitable tolling of a statute of limitations.”); Henderson v. Johnson, 1 F. Supp.2d

650, 656 (N.D.Tex. 1998) (claims that petitioner did not have professional legal

assistance are not the extraordinary circumstances required to toll the statute). 

The Fifth Circuit recently faced a situation similar to the case at bar. In Felder v.

Johnson, No. 98-21050, 2000 WL 144178 (5th Cir. Feb. 9, 2000), the court

refused to apply equitable tolling where an inmate claimed he missed the deadline

because he was proceeding pro se and was unaware of relevant case law due to

inadequacies in the prison library.

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of the statute of limitations on his petition for habeas corpus.2

Mr. Riley also asserts that we should grant equitable tolling based upon his

claim of actual innocence, arguing that failure to do so would result in a

fundamental miscarriage of justice. This court has implied that actual innocence

may be grounds for equitable tolling of the § 2244(d)(1) limitations period. See

id. “The claim of actual innocence itself is not a constitutional claim, but rather a

gateway through which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390,

404 (1993). 

If the evidence that Mr. Riley offers us as proof of his actual innocence

were stronger, we would be more inclined to find that he satisfies the fundamental

miscarriage of justice exception that excuses a petitioner’s procedural default. 
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See id. (“The fundamental miscarriage of justice exception is available ‘only

where the prisoner supplements his constitutional claim with a colorable showing

of factual innocence.’”). Mr. Riley’s evidence consists of (1) a sworn affidavit

signed by himself, in which he asserts his innocence, and (2) a sworn affidavit

signed by Kim Riley, the owner of the house and his wife, asserting that no crime

had occurred. Unlike scientific evidence or verifiable testimony, such selfserving and conclusory statements are insufficient to establish actual innocence,

particularly in light of the fact that Mr. Riley admitted he committed the crime

when he pled guilty.

Mr. Riley failed to convince us that we should grant him equitable tolling

for the habeas corpus petition he filed almost nine months after his statute of

limitations expired. There is no indication that he diligently pursued his petition

or was prevented from doing so by an extraordinary obstacle. His claim of actual

innocence does not satisfy the fundamental miscarriage of justice exception

because it is based solely on conclusory statements by two obviously interested

parties.

Accordingly, we DENY the certificate of appealability and DISMISS the

petition.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge