## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 13 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALEJANDRO GONZALES, also known as Miguel Lopez,

Petitioner-Appellant, No. 04-6258

v. (W.D. Oklahoma) STEVEN BECK; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. (D.C. No. CV-04-262-C)

ORDER

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.
Alejandro Gonzales, a state prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 habeas petition. Mr. Gonzales also seeks to proceed in fo rma pauperis. We deny his request for a COA and dismiss this matter. I. BACKGROUND On January 6, 2000, Mr. Gonzales entered a plea of guilty on nine counts involving multiple drug-related offenses. Mr. Gonz ales was sentenced to serve twenty-five year terms of imprisonment for each of the first three counts, and-2-

five-year terms for the remaining six counts, all t o run concurrently. Mr. Gonzales did not timely move to withdraw his guilty plea or appeal the convictions. Over two years later, on March 14, 2002, Mr. Gonzal es sought postconviction relief in Oklahoma state court, raising five challenges to his conviction and sentence. On May 24, 2002, the Oklahoma state court denied relief. On March 6, 2003, Mr. Gonzales sought to appeal this d ecision out of time, which the Oklahoma district court denied on December 4, 2003. The Oklahoma Court of Criminal Appeals affirmed this decision on February12, 2004. On March 7, 2003 , Mr. Gonzalez filed a petition pursuant to § 2254 in case No. 03-318-F, which the district court dismissed onJune 13, 2003 for failure to exhaust state court remedies. Mr. Gonzales filed t he instant § 2254 petition on March 9, 2004, alleging Brady violations, Miranda violations, ineffective assistance of counsel, violation of his due process rights, and other claims “listed in lower court pleadings.” Aplt’s Br. at 3. The d istrict court denied the petition as untimely under 28 U.S.C. § 2244(d)(1) and found that equitable tolling did not excuse its untimeliness. II. DISCUSSION We review de novo the district court’s denial of a habeas petition based on § 2244(d), examining a district court’s findings of fact for clear error. Burger v.-3-

Scott , 317 F.3d 1133, 1137-38 (10th Cir. 2003). “[W]e r eview the district court’s decision on equitable tolling of the limitations pe riod [, however,] for an abuse of discretion.” Id. at 1138. Because Mr. Gonzales is proceeding pro s e, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991). A. One-year Limitations Period Where, as here, a district court denies a habeas pe tition on procedural grounds without reaching the underlying constitutio nal claims, a COA should issue if the petitioner demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim of the de nial of a constitutional right, and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress has “established a one-year period of limi tations for habeas petitions.” Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28 U .S.C. § 2244(d)(1)). By statute, the one-year period of li mitations 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). The one-year limitations period is tolled, however, for “[t]he time during which a properly filed application for State post-conviction relief . . . is-4-

pending,” see id. § 2244(d)(2), and may also in rare circumstances “b e subject to equitable tolling.” Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998); see Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (discussing th e limited circumstances in which equitable tolling may be war ranted and noting that “[s]imple excusable neglect is not sufficient”). Mr. Gonzales contends that the state waived the tim e bar because it failed to raise it in a timely fashion below. According t o Mr. Gonzales, when he filed his § 2254 petition in case No. 03-318-F, the state initially raised only his failure to exhaust. We shall attempt to clarify the proced ural ambiguities in this case. The district court dismissed Mr. Gonzales’s § 2254 petition in No. 03-318- F without prejudice for failure to exhaust. Upon f urther review, the magistrate judge and district court recognized that this dismi ssal without prejudice in No. 03-318-F was premised upon the belief that Mr. Gonz ales might perfect an appeal out of time in the Oklahoma state court. See Supl. Report and Recommendation, at 5 n. 4 (July 20, 2004) “[U]pon further review of this decision [to dismiss without prejudice], . . . . [Mr. Gonzales] did notfile his post-conviction application within the one-year limitations period governing the filing of his habeas petition, and therefore the post-conviction application could not toll the running of the limitation period . . . , whether ornot [Mr. Gonzales] was allowed-5-

to file an appeal out-of-time in his post-convictio n proceeding.” Id. We hold this conclusion to be correct. As to Mr. Gonzales’s waiver claim, issuance of a CO A is jurisdictional, Miller-El v. Cockrell , 537 U.S. 322, 336 (2003), and as such, the state cannot waive an argument as to the timeliness of a filing of a petition pursuant to AEPDA when a COA is required. See United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (“[J]urisdictional issues are never waived and can be raised on collateral attack.”). We agree with the district court’s conclusion that under § 2244(d), Mr. Gonzales filed his habeas petition after the expiration of the one-year limitations period. Because Mr. Gonzales entered his guilty pl ea on January 6, 2000, and he did not appeal his conviction, the judgment became final on January 16, 2000, ten days after entry of the judgment. See O KLA
. C RIM
. A PP
. R. 4.2(A), O KLA
. S TAT
. tit. 22, ch. 18, app. (2004). Absent a tolling eve nt, Mr. Gonzales was therefore required to file his habeas petition on or before J anuary 16, 2001, for the petition to be timely. Because Mr. Gonzales did not seek po st-conviction relief until after January 16 2001, no tolling event occurred. B. Equitable Tolling Mr. Gonzales also sought equitable tolling before t he district court. Mr. Gonzales maintains that he is actually innocent, th at he is unskilled in the English-6-

language, that the state did not allow him to call the Mexican Consulate as required by treaty, that he did not received legal assistance in Spanish, and that he had limited access to any current legal materials. For the last proposition he attaches an affidavit from the law library supervis or indicating that the law library at the Mack H. Alford Correctional Facility has notreceived any new legal materials since August 1995. Equitable tolling is appropriate only “when an inmate 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). [W]e have limited equitable tolling of the one-yearlimitations period to “rare and exceptional” circumstances. Therefore , [e]quitable tolling would be appropriate, for example, when a prisoner is actually innocent, when an adversary’s conduct–or other uncontrollable circumstances–prevents a prisoner from timely filin g, or when a prisoner actively pursues judicial remedies but fil es a defective pleading during the statutory period. Burger , 317 F.3d at 1141 (citation omitted). To demonstrate actual innocence before the districtcourt, Mr. Gonzales must establish that “‘it is more likely than not th at no reasonable juror would have convicted him in light of the new evidence.’” Phillips v. Ferguson , 182 F.3d 769, 774 (10th Cir. 1999) (quoting Schlup v. Delo , 513 U.S. 298, 327 (1995)). Mr.-7-

Gonzales offers no evidence to support his claim of actual innocence; he merely asserts that he was convicted for federal rather th an state crimes. As to the remaining assertions, while we recognize that at least some of the hardships noted by Mr. Gonzales may have inhibited his ability to timely file his § 2254 petition, we conclude that equitable tolling s hould not apply here to excuse his otherwise untimely filing. See Gibson , 232 F.3d at 808 (“[A] claim of insufficient access to relevant law . . . is not en ough to support equitable tolling.”); Turner v. Johnson , 177 F.3d 390, 392 (5th Cir. 1999) (holding that unfamiliarity with the legal process due to illite racy does not merit equitable tolling). Mr. Gonzales cannot show his efforts wer e diligent: he waited over full year before seeking post-conviction relief, and that attempt may have been prompted by the government’s arguments in No. 03-31 8-F. See Miller , 141 F.3d at 978 (refusing to apply equitable tolling because petitioner “provided no specificity regarding the alleged lack of access an d the steps he took to diligently pursue his federal claims”). We have reviewed the entire record, the district co urt’s order, and the brief on appeal. We agree with the district court’s conc lusion that Mr. Gonzales is not entitled to equitable tolling. III. CONCLUSION-8-

We conclude that the district court correctly dismi ssed Mr. Gonzales’s habeas petition as untimely. We determine that he has failed to raise a debatable issue, and therefore we DENY his request for a COA, DENY his motion to proceed in forma pauperis, and DISMISS the matter.

Entered for the Court,

Robert H. Henry Circuit Judge