* 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); 10th Cir. R. 34.1.9. This case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### OCT 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RICHARD RAY LACEY,

Defendant-Appellant. No. 98-3030 (D.C. No. 97-CV-3452-SAC) (District of Kansas)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

Richard Ray Lacey seeks a certificate of appealabil ity under 28 U.S.C. § 2253(c) so that he may appeal the district court’s dismissal of his 28 U.S.C. § 2255 habeas corpus petition. However, because Mr. Lacey has failed to make a substantial showing of the denial of a constitution al right, we deny his request.2

In 1994, a jury convicted Mr. Lacey of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, one count of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of posse ssion of cocaine and marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Lacey directly appealed his convic tions, and we affirmed. United States v. Lacey , 86 F.3d 956, 973 (1996). On October 15, 1996, th e Supreme Court denied his petition for certiorari. Lacey v. United States , 117 S. Ct. 331 (1996). On October 27, 1997, the clerk of the district court received a pro se 28 U.S.C. § 2255 petition from Mr. Lacey. Even accept ing Mr. Lacey’s assertion that he mailed this petition on October 21, 1997 an d giving him the benefit of the “mailbox rule,” see Houston v. Lack , 487 U.S. 266, 270 (1988) (holding that pro se prisoner’s notice of appeal is “filed” when he “ delivers such notice to the prison authorities for forwarding to the clerk of the District Court”) , he still filed his habeas petition one year and six days after the Supreme Court had denied his petition for certiorari. Thus, he filed his habea s petition six days after the oneyear limitation period provided by the Antiterroris m and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2255 (“A 1-year period of limitation s hall apply3

to a motion under this section. The limitation per iod shall run from . . . (1) the date on which the judgment of conviction becomes final.”); see also Griffith v. Kentucky , 479 U.S. 314, 321 n.6 (1987)(defining “final judg ment” in retroactivity context as “a case in which a judgmen t of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.’”) . Mr. Lacey does not contest that he filed his petiti on more than one year after the Supreme Court denied certiorari. Nor doe s he seek harbor in the AEDPA provision that delays the running of the one- year period until “the date on which the facts supporting the claim or claims p resented could have been discovered through the exercise of due diligence.” See 28 U.S.C. § 2255(4). Rather, he attempts to escape AEDPA’s one-year limi tation period by alleging that his former attorney provided him with incorrec t information regarding the due date of his habeas petition. AEDPA’s one-year limitation period is not jurisdict ional but, rather, is in the nature of a statute of limitations and, thus, m ay be subject to equitable tolling. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied , 1998 WL 407280 (Oct. 5, 1998). In United States v. Glover , 1998 WL 453674, at *1 (10th Cir. Aug. 5, 1998), we held that equitable tolling was not warranted because the pro se habeas petitioner had failed to show that “there was an impediment created4

by governmental action, . . . and [that] it prevent ed [him] from filing his motion

in time.” See also Johnson v. United States Postal Serv. , 861 F.2d 1475, 1481 (10th Cir. 1988) (stating that equitable tolling is appropriate where, among other things, the failure to file was “due to a false rep resentation by [a] court, agency, or putative [adversary]”). Here, as in Glover , Mr. Lacey’s former attorney is not a government actor. Moreover, Mr. Lacey has failedto allege any “extraordinary” circumstances that would justify eq uitable relief from AEDPA’s one-year statute of limitations. See Johnson , 861 F.2d at 1480-81. Thus, equitable tolling is not warranted in this case. See Glover , 1998 WL 453674, at *1; Calia v. Morrison , 1995 WL 311750, at *2 (10th Cir. May 22, 1995) (“Because [a § 1983 plaintiff’s] attorney was not p rivately retained and was not a state actor, his alleged misrepresentations cannot be attributed to the other defendants, and the claims against them were not to lled.”). Consequently, we hold that Mr. Lacey’s § 2255 petit ion was untimely and hereby DENY his request for a certificate of appeal ability. In light of this holding, we also DENY as moot his motion to supplem ent his § 2255 petition.

Entered for the Court,

Robert H. Henry Circuit Judge