* This order and judgment is not binding precedent, e xcept under the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 12 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL DANA WILLIAMS,

Petitioner-Appellant, No. 99-8042
v. (D.C. No. 97-CV-304-B) WYOMING ATTORNEY GENERAL and MICHAEL V. PUGH, Warden, Federal Correctional Institution, Florence, Colorado, (D. Wyo.)

Respondents-Appellees.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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. Petitioner Paul Dana Williams, proceeding pro se, appeals the district court’s dismissal of his petition for a writ of hab eas corpus filed pursuant to 28-2-

U.S.C. § 2254 and his request for a writ of error c oram nobis. Petitioner, currently incarcerated at the Federal C orrectional Institution at Florence, Colorado, pleaded guilty in 1983 to mansl aughter in Wyoming and was sentenced to three to eight years’ imprisonment. I n this habeas corpus petition filed in the United States District Court for the D istrict of Wyoming, Petitioner alleged that he was factually innocent of the crime charged because the information for his conviction charged first degree murder but was not changed to reflect his plea. He also claimed that he was neve r formally arraigned on the manslaughter charge, nor was he advised of the elem ents of manslaughter. Petitioner has served his state sentence but his ch allenge rests on the use of the Wyoming conviction for a career offender enhancemen t of a sentence imposed in the United States District Court for the Eastern Di strict of Texas. The United States District Court for the District o f Wyoming dismissed the petition, finding that it was untimely under 28 U.S .C. § 2244(d) because it was not filed until December 22, 1997, eight months aft er the period of limitations, including a one-year grace period, had run. The co urt also dismissed Petitioner’s request of a writ of error coram nobis because a fe deral court does not have jurisdiction to attack a state criminal judgment un der this writ. The court subsequently denied Petitioner a certificate of app ealability because he failed to make a substantial showing of the denial of a const itutional right.-3-

Petitioner renewed his application for a certificat e of appealability in this court and also moved to amend that application. In the motion to amend, Petitioner incorrectly states that the district cou rt originally denied his § 2254 petition only because it was moot but later changed its reasoning “because [the] issue was not constitutional.” Motion to Amend at 2. In fact, the district court denied the habeas corpus petition because it was untimely, denied the request for a writ of error coram nobis because it was inapprop riate, and denied all other pending motions as moot. See R., Vol. 1, Doc. 7 at 2-3. Neither the § 2254 petition nor the application for a certificate of appealability was denied as moot. Accordingly, Petitioner’s original application for a certificate of appealability suffices, and we deny his motion to amend. Because Petitioner’s Wyoming conviction became fina l in 1983, his § 2254 petition challenging that conviction was due on Apr il 23, 1997. See Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998) (applying on e-year grace period for statute of limitations to petitioners whose convict ions became final before April 24, 1996). He filed no applications for stat e collateral review that would toll the one-year limitations period in this case. See id. at 1226. On this basis, the district court determined that the petition was untimely. On appeal, Petitioner presents no argument concerning the untimeliness of his petition, contending instead that his assertion of actual innocence trumps any procedural mistakes.-4-

The cases he cites to support his position of actua l innocence, however, pertain not to the timeliness of a federal habeas corpus pe tition but to procedural default in state courts. Nonetheless, because we construe pro se proceedings liberally,

see Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996), we examine whether the district court should have equitably to lled the limitations period for Petitioner’s claim of actual innocence. Having reviewed Petitioner’s applications, his brie f, and the record, we conclude that Petitioner has not presented the court with sufficient reason to equitably toll the statute of limitations. First, this court has noted that courts have historically limited equitable tolling of a statutory limitation period to situations where a petitioner “has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the [petitioner] has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Bridges v. Booher , No. 99-6191, 1999 WL 617723 (10th Cir. Aug. 16, 1 999) (quoting Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990)); see also Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied , U.S. , 119 S. Ct. 210 (1998) (indicating that equitable tollin g principles apply only where a prisoner has diligently pursued his federal habeas claims). Petitioner’s allegations do not address the active pursuit of ju dicial remedies or any government trickery or misconduct and thus have notsatisfied this criteria. Second, in spite of his claim of innocence in relat ion to the alleged charge-5-

of first degree murder, Petitioner pleaded guilty t o and was sentenced for manslaughter. He does not claim that he is actuall y innocent of manslaughter. Neither the record nor our independent research tel ls us whether the District Court for the Eastern District of Texas enhanced Pe titioner’s sentence based on a first degree murder charge or a manslaughter charge . Nevertheless, because his manslaughter conviction is a felony that would sati sfy the career offender enhancement under § 4B1.2(a) of the United States S entencing Guidelines
anyway, see W YO
. S TAT
. ANN . § 6-2-105; U.S.S.G. § 4B1.2, comment. (n.1) (including manslaughter in definition of “crime of violence”), the distinction between the two offenses is insignificant for purpo ses of Petitioner’s claims. In short, Petitioner has raised no arguments which merit further proceedings, debate, or a different result on appea l. See Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983). Accordingly, he has not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and we therefore DENY his request for a certificate of appealabilityand DISMISS the appeal. Entered for the Court

Monroe G. McKay Circuit Judge