* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 9 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRANDON FISHER, Petitioner - Appellant, vs. LENORA JORDON, Warden, Respondent - Appellee. No. 00-6312 (D.C. No. CIV-00-844-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. **
Brandon Fisher, an inmate proceeding pro se, seeks to appeal from the district court’s denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. For substantially the same reasons stated in the district court’s order, we affirm the denial of Mr. Fisher’s application for a certificate of appealability (“COA”), and dismiss the appeal. See Slack v. McDaniel , 529 U.S.- 2 -

473, 482 (2000). Mr. Fisher entered a guilty plea in Oklahoma state court on September 9, 1986. Doc. 13 at 1. Because Mr. Fisher made no ti mely application to withdraw his plea, the judgment against him became final on the day he pled guilty. Okla. Ct. Crim. App. Rule 4.2(A) (providing that defendan t must apply to withdraw plea within ten days from date of judgment). Between 19 94 and 1999, Mr. Fisher filed three applications for post-conviction relief in st ate court, all of which were denied by the trial court and the Oklahoma Court of Criminal Appeals (“OCCA”). Only the second and third applications are relevantto this appeal. Although the record does not specify when the second application was filed, the OCCA dismissed Mr. Fisher’s appeal from the denial of th at application on May 7, 1996. Doc. 13 at 4. Petitioner filed his third post-conv iction application on January 5, 1999, id. , and the present federal petition on May 5, 2000. Doc. 1. Upon the Magistrate Judge’s recommendation, Doc. 13, the dis trict court dismissed Mr. Fisher’s § 2254 petition as untimely. Doc. 16. Th e court also denied Mr. Fisher’s application for a COA. Doc. 22. To obtain a COA, Mr. Fisher must show that “jurist s of reason would find it debatable whether the petition states a valid cl aim of the denial of a constitutional right andthat jurists of reason would find it debatable whe ther the district court was correct in its procedural ruling ” that his petition was untimely.- 3 -

Slack , 529 U.S. at 484 (emphasis added). Each componentof this showing “is part of a threshold inquiry, and a court may find t hat it can dispose of the application in a fair and prompt manner if it proce eds first to resolve the issue whose answer is more apparent from the record and a rguments.” Id. at 485. In this case, that issue is whether Mr. Fisher’s petit ion was timely. We agree that it
was not. Because Mr. Fisher’s petition was filed after April 24, 1996, it is subject to the Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”), see Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998), including the one-year time bar set forth at 28 U.S.C. § 2244(d)(1). Under that pr ovision, a federal habeas petition must be filed within one year from “the date on which the judgment became final . . . .” 28 U.S.C. § 2244(d)(1)(A). For petitioners like Mr. Fisher, whose convictions became final before AEDPA took ef fect on April 24, 1996, the limitations period begins to run on that date and e nds April 23, 1997. See Hoggro
v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). “The time during which a properly filed application for State post-convictio n or other collateral review . . . is pending shall not be counted toward any period o f limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Given that t he OCCA denied Mr. Fisher’s second post-conviction appeal on May 7, 1996, we ca n infer that the second application was pending in state court on April 24, 1996. Thus, the limitation- 4 -

period did not begin to run until May 7, 1996, and ended one year later on May 6, 1997. Mr. Fisher’s third post-conviction motion, f iled on January 5, 1999, was too late to trigger any additional tolling under § 2244(d)(2). Mr. Fisher claims that his ignorance of AEDPA, alle gedly stemming from prison overcrowding and inadequate prison libraries , justifies equitable tolling of the one-year time bar. This court has recognized t hat AEDPA’s limitation period “may be subject to equitable tolling.” Miller v. M arr , 141 F.3d 976, 978 (10th Cir. 1998). To justify equitable tolling, an inmat e must make a specific showing of: (1) lack of access to relevant materials, and ( 2) the steps taken to “diligently pursue his federal claims.” Id. Mr. Fisher’s allegations regarding his ignorance of AEDPA are inadequate: “[i]t is not enough to saythat the . . . facility lacked all relevant statutes and case law or that the proc edure to request specific materials was inadequate.” Id. ; see also Felder v. Johnson , 204 F.3d 168, 169 (5th Cir. 2000) (holding that petitioner’s “alleged unawareness of AEDPA’s requirements . . . due to inadequacies of his priso n’s library” was “clearly insufficient to warrant equitable tolling”). We al so note that nearly four years elapsed between the OCCA’s dismissal of Mr. Fisher’ s second post-conviction motion (when the AEDPA time limit began to run) and the filing of the instant petition. This lengthy gap precludes any claim that he diligently pursued his federal claims. Accordingly, equitable tolling is not available to Mr. Fisher, and- 5 -

his petition was properly dismissed as untimely. Mr. Fisher has also filed a motion to proceed in fo rma pauperis. See 28 U.S.C. § 1915(a)(1). To obtain in forma pauperis s tatus under 28 U.S.C. § 1915(a)(1), a habeas petitioner/appellant must show“a financial inability to pay the required fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on ap peal.” McIntosh v. United States Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (quotations an d citation omitted). Mr. Fisher has $1,204.58 in his institutional accounts. Doc. 21 at 2. Since this amount was sufficient to prepay t he filing fee of $105, Mr. Fisher is not entitled to in forma pauperis status. Accordingly, Mr. Fisher’s petitions for a COA and t o proceed in forma pauperis are DENIED and the appeal is DISMISSED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge