* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument. Petitioner Calvin Wesley Riley, appearing pro se, s eeks a certificate of appealability to challenge the district court’s ord er dismissing his 28 U.S.C. §-2-

2254 petition as untimely. Because Mr. Riley has n ot 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 deg ree burglary in state court and was sentenced to ten years imprisonment, three of which were suspended. He applied for state post-conviction re lief, which was denied, and then appealed to the Oklahoma Court of Criminal App eals (OCCA), which rejected the appeal as untimely. Mr. Riley filed ahabeas corpus petition in the district court alleging that he was factually innoc ent of the crime charged, his guilty plea had been defective, and his trial couns el 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 co nsideration 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 dist rict 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 unt imely filed. See Hoggro v.
Boone , 150 F.3d 1223, 1227 n.4 (10th Cir. 1998). Conseq uently, Mr. Riley had1 Mr. Riley claims that requests to transfer to satel lite law libraries for

research are “rarely granted,” and that inmate lega l research assistance, “while not prohibited” is “not encouraged.” He does not, howe ver, argue that he ever made a request to use the satellite library or assert thathe sought inmate legal research assistance but was prevented from utilizing it. -3- until approximately June 24, 1998 to file his petit ion for habeas relief. He did not file until March 15, 1999. Mr. Riley argues the limitations period should be e quitably tolled, based on the inadequacy of legal materials in the prison lib rary, 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 diligentlypursue 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 appropri ate 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 h is rights). Mr. Riley presents us with no evidence that he either diligently pursu ed his claims or was prevented in some extraordinary way from doing so. Rather, i t appears to this court that, as in Miller , 141 F.3d at 978, he was simply unaware that the m onths he spent pursuing his time-barred appeal before the OCCA wer e not tolled for the purposes2 Mr. Riley’s conclusory allegations regarding his la ck of access to legal

materials are insufficient to justify equitable tol ling. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (“It is not enough to saythat the [prison] lacked all relevant statutes and case law or that the procedur e to request specific materials was inadequate.”). Nor are his allegations regardi ng 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 di d not have professional legal assistance are not the extraordinary circumstances required to toll the statute). The Fifth Circuit recently faced a situation simila r to the case at bar. In Felder v. Johnson , No. 98-21050, 2000 WL 144178 (5th Cir. Feb. 9, 20 00), 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. -4- of the statute of limitations on his petition for h abeas corpus. 2 Mr. Riley also asserts that we should grant equitab le 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 co nstitutional 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 o f his actual innocence were stronger, we would be more inclined to find th at he satisfies the fundamental miscarriage of justice exception that excuses a pet itioner’s procedural default.-5-

See id. (“The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional c laim with a colorable showing of factual innocence.’”). Mr. Riley’s evidence con sists of (1) a sworn affidavit signed by himself, in which he asserts his innocenc e, 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 verifi able testimony, such selfserving and conclusory statements are insufficient to establish actual innocence, particularly in light of the fact that Mr. Riley ad mitted he committed the crime when he pled guilty. Mr. Riley failed to convince us that we should gran t him equitable tolling for the habeas corpus petition he filed almost nine months after his statute of limitations expired. There is no indication that h e diligently pursued his petition or was prevented from doing so by an extraordinary obstacle. His claim of actual innocence does not satisfy the fundamental miscarri age 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