*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted 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 Shelton’s ineffective assistance of

counsel claims are time-barred, and his remaining claims fail to make a
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“substantial showing of the denial of a constitutional right” as required by 28

U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal. 

Shelton received five consecutive life sentences for Felony Murder in the

First Degree, two counts of Kidnapping for the Purpose of Extortion, Rape in the

First Degree, and Forcible Oral Sodomy. Shelton brought a direct appeal to the

Oklahoma Court of Criminal Appeals (“OCCA”), raising 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 1995 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 court. The state district court denied

the application and was subsequently affirmed by the OCCA on December 19,

2000. 

On February 2, 2001, Shelton filed a petition for a writ of habeas corpus in

the United States District Court, claiming: (1) ineffective assistance of trial

counsel; (2) ineffective assistance of appellate counsel; and (3) denial of an

adequate state corrective process of his constitutional claims. The district court

assigned the case to a magistrate judge, who ordered Shelton to show cause why
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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, the magistrate judge issued a

Report and Recommendation, concluding that the ineffective assistance of trial

and appellate counsel claims should be considered time-barred and that the

remaining claim was invalid as a matter of law. The magistrate therefore

recommended that the district court dismiss the action summarily. After

consideration of Shelton’s objections, the district court 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 trial counsel; (3) error on the part

of the district court and magistrate judge in their findings and conclusions leading

to dismissal of his petition for untimeliness; and (4) the district court abused its

discretion by not holding an evidentiary hearing regarding his failure to comply

with the statute of limitations.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

added a one-year statute of limitations in habeas actions 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 the conclusion of direct
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review—applied in Shelton’s case. Because final judgment occurred in Shelton’s

case in August of 1990, the magistrate judge concluded 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 this grace

period, however, Shelton still filed his petition well beyond the April 23, 1997

deadline. The magistrate judge then analyzed whether 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 impediment to his ability to bring

his petition in federal court, Shelton had failed to 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 eyesight was only impaired until

1995, thus providing him with ample time to have met the April 23, 1997

deadline. Further, Shelton’s claim that the private prison to which he was

transferred contained inadequate materials to prepare his petition belies the fact

that his habeas claims are quite similar to his claims for state post-conviction

relief. See id. (rejecting similar argument where state appeal claims were nearly

identical to habeas claims). The district court properly rejected Shelton’s request
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for an evidentiary hearing on the issue because, even if we assume all of

Shelton’s allegations are true, his case would still 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