* This order and judgment is not binding precedent, except under the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

### FEB 7 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DALE A. SHELTON, Petitioner - Appellant, v. UNKNOWN WARDEN, at Davis Facility, Respondent - Appellee. No. 01-6219 (D.C. No. 01-CV-236-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. **
Petitioner-Appellant Dale Austin Shelton, an inmate appearing pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the district court’s order denying relief on his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Because we agree with the district court that Shelt on’s ineffective assistance of counsel claims are time-barred, and his remaining c laims fail to make a- 2 -

“substantial showing of the denial of a constitutio nal right” as required by 28 U.S.C. § 2253(c)(2), we deny his request and dismis s the appeal. Shelton received five consecutive life sentences fo r Felony Murder in the First Degree, two counts of Kidnapping for the Purp ose of Extortion, Rape in the First Degree, and Forcible Oral Sodomy. Shelton br ought a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), raisin g various trial errors and a claim of ineffective assistance of trial counsel. The OCCA affirmed the trial court on all claims. See Shelton v. State , 793 P.2d 866 (Okla. Crim. App. 1990). According to Shelton, from 1991 to 1995 his eyesight was impaired due to problems stemming from diabetes. In addition, in 1 995 he was transferred to a private prison where he had to depend upon an attorney fifty miles away who was responsibile for over 2,000 other inmates. On May 9, 2000, Shelton filed a postconviction relief application in state district cou rt. The state district court denied the application and was subsequently affirmed by th e OCCA on December 19,
2000. On February 2, 2001, Shelton filed a petition for awrit of habeas corpus in the United States District Court, claiming: (1) ine ffective assistance of trial counsel; (2) ineffective assistance of appellate co unsel; and (3) denial of an adequate state corrective process of his constituti onal claims. The district court assigned the case to a magistrate judge, who ordere d Shelton to show cause why- 3 -

the action should not be summarily dismissed based upon the statute of limitations and the unavailability of habeas relief for defects in a state’s post-conviction procedures. After receiving Shelton’s response, th e magistrate judge issued a Report and Recommendation, concluding that the inef fective assistance of trial and appellate counsel claims should be considered t ime-barred and that the remaining claim was invalid as a matter of law. Th e magistrate therefore recommended that the district court dismiss the act ion summarily. After consideration of Shelton’s objections, the districtcourt adopted the Report and Recommendation and dismissed the petition. On appeal, Shelton raises the following claims: (1) ineffective assistance of appellate counsel; (2) ineffective assistance of tr ial counsel; (3) error on the part of the district court and magistrate judge in theirfindings and conclusions leading to dismissal of his petition for untimeliness; and (4) the district court abused its discretion by not holding an evidentiary hearing re garding his failure to comply with the statute of limitations. The Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”) added a one-year statute of limitations in habeas a ctions brought by state prisoners. 28 U.S.C. § 2244(d)(1). The magistrate judge noted that only § 2244(d)(1)(A)—providing for measurement of the statute of limitations from the date on which the state judgment became final by th e conclusion of direct- 4 -

review—applied in Shelton’s case. Because final ju dgment occurred in Shelton’s case in August of 1990, the magistrate judge conclu ded correctly that the statute of limitations began running on the effective date of the AEDPA, April 24, 1996.
See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Even given t his grace period, however, Shelton still filed his petition w ell beyond the April 23, 1997 deadline. The magistrate judge then analyzed wheth er equitable tolling might apply in Shelton’s case, but determined that in the absence of either a claim of actual innocence or an adequate showing of an imped iment to his ability to bring his petition in federal court, Shelton had failed t o raise an “extraordinary circumstance” meriting equitable tolling. See id. (discussing the possible circumstances that might merit equitable tolling). We agree with the magistrate judge’s conclusion that Shelton’s claim that his impaired eyesight prevented him from filing his petition does not justify equitable tolling. Shelton himself claims his eyes ight was only impaired until 1995, thus providing him with ample time to have me t the April 23, 1997 deadline. Further, Shelton’s claim that the privat e prison to which he was transferred contained inadequate materials to prepa re his petition belies the fact that his habeas claims are quite similar to his cla ims for state post-conviction relief. See id. (rejecting similar argument where state appeal cla ims were nearly identical to habeas claims). The district court pr operly rejected Shelton’s request- 5 -

for an evidentiary hearing on the issue because, ev en if we assume all of Shelton’s allegations are true, his case would stil l not compel us to consider it as meriting equitable tolling. Accordingly we DENY Petitioner’s request for a COA and DISMISS his appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge