* This order and judgment is not binding precedent, e xcept under the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

### FEB 23 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS HORTON, Petitioner-Appellant,

v. No. 99-6285 STEPHEN W. KAISER, Respondent-Appellee. (D.C. No. CIV-99-62-T) (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). T he case is therefore ordered submitted without oral argument. Thomas Horton, an Oklahoma state prisoner appearing pro se, seeks a certificate of appealability to appeal the districtcourt’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus on statut e of limitations grounds.2

Because we conclude Horton has failed to make “a su bstantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2), we deny his request for a certificate of appealability and dismiss the appeal

. I. On November 3, 1994, Horton pled guilty in the District Court of Comanche County, Oklahoma, to one count of second d egree burglary, after former conviction of two or more felonies. He was subsequently sentenced on December 16, 1994, to life imprisonment. Horton fi led a pro se notice of appeal in the Oklahoma Court of Criminal Appeals (OCCA) onJanuary 26, 1995. The OCCA dismissed the appeal on August 15, 1996, concl uding Horton waived his right to appeal by failing to timely file a motion to withdraw his guilty plea. Horton filed an application for post-conviction rel ief in state district court on July 31, 1996. The state district court denied the application on May 7, 1997. Horton appealed and, on August 12, 1997, the OCCA a ffirmed the denial of the application. Horton filed his federal habeas petition on January14, 1999. The district court, acting upon a report and recommendation issu ed by a magistrate judge, dismissed Horton’s petition as untimely. The distr ict court subsequently denied Horton’s request for a certificate of appealability , as well as his motion to proceed in forma pauperis on appeal.3 II. On April 24, 1996, Congress amended what had been “ the long-standing prior practice in habeas corpus litigation that gav e a [state] prisoner virtually unlimited amounts of time to file a habeas petition in federal court,” and “established a one-year period of limitations for [ federal] habeas petitions.” Hoggro v. Boone , 150 F.3d 1223, 1224 (10 thCir. 1998) (citing 28 U.S.C. § 2244(d)(1)). By statute, the one-year period of limitations generally begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for see king such review.” 28 U.S.C. § 2244(d)(1)(A). For prisoners whose convictions b ecame final prior to April 24, 1996, however, the new “one-year statute of limitat ions does not begin to run until April 24, 1996.” Hoggro , 150 F.3d at 1225; United States v. Simmonds , 111 F.3d 737, 744-46 (10 thCir. 1997). The one-year period of limitations can be tolled by ongoing post-conviction litigation in state court. See Hoggro , 150 F.3d at 1226. In particular, 28 U.S.C. § 2244(d)(2) provides “[t]he time during which a prop erly filed application for State postconviction or other collateral review wit h respect to the pertinent judgment or claim is pending shall not be counted t oward” the one-year period of limitation. We have also indicated the one-year pe riod of limitations “may be subject to equitable tolling.” Miller v. Marr , 141 F.3d 976, 978 (10 thCir.), cert.4

denied , 119 S.Ct. 210 (1998). Here, a review of the record on appeal demonstrates , without question, that Horton’s federal habeas petition was untimely. Bec ause Horton did not move to withdraw his guilty plea within ten days of his sentence, his conviction and sentence became final under Oklahoma law on Decembe r 26, 1994. See Rule 4.2(A), Rules of the Ct. of Crim. App., Okla. Stat. tit. 22, Ch. 18, App. Therefore, his one-year period of limitations underthe AEDPA began running on April 24, 1996. The period was tolled from July 31 , 1996, when Horton filed his application for post-conviction relief in state dis trict court, until August 12, 1997, when the OCCA affirmed the denial of his applicatio n. From that point forward, the period of limitations was running and effective ly expired on May 5, 1998, well prior to the filing of Horton’s federal habeas petition. Although Horton argues for an indefinite period of equitable tolling, we agree with the district court that none of his prof fered reasons justify such a result. First, because there is no right to counse l in collateral proceedings, Pennsylvania v. Finley , 481 U.S. 551, 555 (1987), the unavailability of c ounsel or other “trained persons” to assist him does not cons titute proper “cause” to justify his failure to file a timely petition. See Whiddon v. Dugger , 894 F.2d 1266, 1267 (11th Cir. 1990). Likewise, Horton’s alleged ignor ance of the AEDPA’s one-year time limitation does not constitute sufficient caus e to warrant invocation of5

equitable tolling principles. See Miller , 141 F.3d at 978 (concluding that petitioner’s lack of awareness of AEDPA limitation period did not warrant equitable tolling); cf. Rodriguez v. Maynard , 948 F.2d 684, 688 (10th Cir. 1991) (holding that “pro se status and . . . correspondin g lack of awareness and training on legal issues do not constitute adequate cause” f or failure to raise an issue in a previous habeas petition). Lastly, the alleged lac k of adequate library facilities does not constitute cause, at least where, as here, the petitioner has not otherwise demonstrated due diligence in pursuing his federal habeas claims. See Miller , 141 F.3d at 978 (refusing to apply equitable tollin g where inmate “provided no specificity regarding the alleged lack of access an d the steps he took to diligently pursue his federal claims”). We GRANT the motion to proceed in forma pauperis, D ENY the application for certificate of appealability, and D ISMISS the appeal. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge