* This order and judgment is not binding precedent, e xcept under the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

### NOV 29 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

CAVROLL HICKMON, JR.,

Petitioner-Appellant,

v. DEBBIE MAHAFFEY, Warden,

Respondent-Appellee. No. 01-5073 (D.C. No. 00-CV-570-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and LUCERO , Circuit Judges.

After examining the petitioner’s brief and the appe llate record, this panel has determined unanimously that oral argument wouldnot materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument.-2-

Petitioner Cavroll Hickmon, Jr., an Oklahoma state prisoner proceeding pro se, seeks a certificate of appealability (COA) to c hallenge the district court’s order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA is sued). We deny issuance of a COA and dismiss the appeal. Mr. Hickmon was convicted of first-degree murder an d sentenced to life in prison on June 27, 1991. His conviction was affirm ed on direct appeal on May 18, 1993. The time for petitioning for certior ari expired ninety days later, on August 16, 1993. Under the Anti-Terrorism and Effe ctive Death Penalty Act (AEDPA), Mr. Hickmon had until April 24, 1997 to fi le a federal habeas petition. 28 U.S.C. § 2244(d)(1); Fisher v. Gibson , 262 F.3d 1135, 1142 (10th Cir. 2001) (holding that when a conviction became final before AEDPA’s effective date of April 24, 1996, a petitioner has one year after AED PA’s enactment to file a § 2254 petition). Mr. Hickmon filed his federal habeas petition on Ju ly 12, 2000, after the AEDPA limitations period had expired. The districtcourt held that Mr. Hickmon’s federal habeas petition was time barred and that equitable tolling was not warranted. Accordingly, the district court dis missed the habeas petition and denied a COA for appeal.-3-

In seeking a COA from this court, Mr. Hickmon argue s that his federal habeas petition should be considered on the merits because (1) the limitations period was tolled by his post-conviction motions fi led in the state court, pursuant to 28 U.S.C. § 2244(d)(2) (AEDPA time limitation pe riod tolled during pendency of properly filed state post-conviction motion), (2 ) he is entitled to equitable tolling based on his actual innocence and his dilig ence in pursuing his remedies, and (3) the holding of Hogan v. Gibson , 197 F.3d 1297 (10th Cir. 1999), cert. denied , 531 U.S. 940 (2000), should be applied to him, wh ich would entitle him to a new trial. He maintains that until Hogan was announced in 1999, he did not have this ground for relief. The district court dismissed the habeas petition onprocedural grounds without reaching petitioner’s underlying constituti onal claims. Therefore, we examine whether “jurists of reason would find it de batable whether the petition states a valid claim of the denial of a constitutio nal right, and that jurists of reason would find it debatable whether the districtcourt was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). Mr. Hickmon’s federal habeas petition was filed lon g after the one-year grace period. His state post-conviction motions, f iled on September 28, 1999 and April 26, 2000, were also filed after the one-year period. Consequently, they could not toll the already-expired limitations period. Fisher , 262 F.3d at 1142-43.1 Mr. Hickmon has not developed his actual-innocence claim on appeal. A

review of his habeas petition reveals his alibi-wit ness argument as the only one supporting his claim that he did not commit the cri me. In the habeas petition, he also complains about trial errors, but these argue only legal innocence, which is insufficient. See Klein v. Neal , 45 F.3d 1395, 1400 (10th Cir. 1995). -4- “AEDPA’s one-year statute of limitations is subjectto equitable tolling but only in rare and exceptional circumstances.” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir.2000) (quotation omitted). Equitable tolling may be appropriate upon a showing of actual innocence. Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). For his actual-innocence claim, Mr. Hickmonstates that if one Chris Brown had been interviewed, he or she would have co rroborated his alibi, thereby strengthening his trial testimony. 1 This is an insufficient showing because it would be merely corroborating evidence and it is entirely speculative. See Stafford v. Saffle , 34 F.3d 1557, 1561-62 (10th Cir. 1994) (holding c orroborative or speculative evidence insufficient to meet high t hreshold for actual innocence in evaluating whether actual-innocence claim warranted leave to amend habeas petition). Accordingly, Mr. Hickmon is not entitle d to equitable tolling on this ground. Mr. Hickmon also contends that he is entitled to eq uitable tolling because he diligently pursued his remedies, but could not h ave filed his federal habeas petition sooner because he did not understand the l egal significance of his actual-innocence claim until he discussed it with a nother inmate shortly before he-5-

filed his habeas petition. In addition, he could n ot afford an attorney or a jailhouse lawyer to explain his legal rights to him

. An inmate may be entitled to equitable tolling if h e “diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied , 121 S. Ct. 1195 (2001). “Simple excusable neglec t is not sufficient.” Gibson , 232 F.3d at 808. Ignorance of the law generally will not excuse timely filing, even for an incarcerated pro se prisoner. Marsh , 223 F.3d at 1220. The inability to hire an attorney al so will not excuse an untimely habeas petition because there is no right to counse l in habeas proceedings. Coleman v. Thompson , 501 U.S. 722, 756-57 (1991) (no right to counsel beyond first criminal appeal as of right). Mr. Hickmon has not demonstrated that extraordinarycircumstances beyond his control prevented him from filing his fe deral habeas action during the four years following the affirmance of his convicti on on direct appeal. “It is apparent that Mr. [Hickmon] simply did not know abo ut the limitation in the AEDPA until it was too late.” Miller , 141 F.3d at 978. Consequently, he is not entitled to equitable tolling. Mr. Hickmon’s argument that he could not seek feder al habeas relief before 1999, when the Hogan case was announced is also unavailing. Hogan is not-6-

applicable to Mr. Hickmon’s circumstances because i t concerned a capital murder case, not a noncapital case like his. Hogan , 197 F.3d at 1300. Because Mr. Hickmon is not entitled to relief under Hogan ’s holding, we need not address any procedural implications of applying the holding to this untimely habeas petition. Cf. Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir.) (declining to add ress complex procedural bar issues because case more eas ily decided on merits), cert. denied , 531 U.S. 982 (2000). Therefore, announcement of Hogan did not extend Mr. Hickmon’s limitations period for filing a federal habeas petition. We agree with the district court’s conclusions thatMr. Hickmon’s petition was untimely and that his pleadings, which we construe liberally pursuant to Haines v. Kerner , 404 U.S. 519, 520-21 (1972), provide no basis forequitable tolling. Accordingly, the district court’s procedural rulin g was correct, and we need not examine the underlying constitutional clai ms. Slack , 529 U.S. at 485. After Mr. Hickmon filed his appellate brief, he sub mitted a “Motion for Leave to File Supplemental Ground,” together with “ Appellant’s Supplemental Ground,” in which he requests that the holding of Daniels v. United States , 254 F.3d 1180 (10th Cir. 2001), be applied to him. We construe the documents as a citation of supplemental authority, as authori zed by Fed. R. App. P. 28(j), and grant the request. The case upon which Mr. Hic kmon relies, however, is inapposite.-7-

Petitioner’s request to file a supplemental authori ty is granted. The application for issuance of a COA is denied. Appea l DISMISSED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge