* After examining the brief and appellate record, this 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. 

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

### MAY 10 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES ALVIN MOORE, III, Petitioner - Appellant, v. GARY E. GIBSON, Respondent - Appellee. No. 00-6251

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-97-1935-T)

Submitted on the briefs: * James Alvin Moore, III, pro se.

Before HENRY , BALDOCK , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.- 2 -

James Alvin Moore, III, an Oklahoma state prisoner appearing pro se, seeks a certificate of appealability pursuant to 28 U.S.C. § 2253(c) to challenge the district court’s dismissal of his 28 U.S.C. § 2 254 petition for a writ of habeas corpus as time-barred under 28 U.S.C. § 2244(d). Moore contends he initiated his state post-conviction proceedings early enough to toll the limitations period of the Antiterrorism and Effective Death Penalty Ac t (“AEDPA”), thus rendering the instant federal petition timely. When we first considered this appeal, we determinedthat its outcome depended on applying Oklahoma law we found unclear. Pursuant to 10th Cir. R.
27.1 and Okla. Stat. Ann. tit. 20, § 1602 , we certified a question of Oklahoma law to the Oklahoma Court of Criminal Appeals. That co urt issued an opinion answering our question, and we now rule on the meri ts of Moore’s appeal. Because this is the third time we have considered M oore’s federal habeas petition, we will only briefly recite the facts, bo rrowing liberally from our prior work. See Moore v. Ward , No. 98-6263, 1999 WL 46717 (10th Cir. Feb. 3, 1999) (unpublished). Moore was convicted in Oklaho ma state court in 1984. After several proceedings not relevant here, he was re-sentenced in December 1993. Although he filed a notice of intent to appe al, Moore never filed an actual appeal and did not initiate state post-conviction p roceedings until April 1997. Moore claims he delivered his state petition to pri son officials for mailing on- 3 -

April 10, 1997, but it was not file-stamped by the Oklahoma state court until April 24, 1997. Moore’s state petition was denied by t he Oklahoma state district court on June 17, 1997, and the Oklahoma Court of C riminal Appeals affirmed the denial on November 4, 1997. Moore allegedly de livered his federal petition to prison officials for mailing on November 13, 1997. Moore’s federal petition was dismissed as time-barred, and he appealed. Because Moore’s state convictions became final befo re the passage of AEDPA, he had until April 23, 1997, one year from A EDPA’s effective date, to file a federal habeas petition. See Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). However, the AEDPA deadline is tolled during the period a state post-conviction proceeding is pending. See 28 U.S.C. § 2244(d)(2); Hoggro , 150 F.3d at 1226. In Moore’s prior appeal, we remandedto the district court to determine whether, in light of Hoggro , Moore had filed his state habeas petition in time to toll the AEDPA limitations period and th us to permit the filing of his § 2254 petition. On remand, the district court referred the case to a magistrate judge. Pursuant to the magistrate judge’s order directing Moore “to submit to this Court any information and supporting documentation he has as to the timely filing of his habeas corpus petition,” (R. Doc. 27 at 2), Moore f iled documentation purporting to show that he delivered his state habeas petitionto prison officials for filing on- 4 -

April 10, 1997. Moore argued that under the “prisoner mailbox ru le” of Houston v. Lack , 487 U.S. 266 (1988), his state petition should be considered filed when delivered to prison officials for mailing. The mag istrate judge rejected Moore’s argument, concluding that the Houston rule does not apply to pleadings filed in Oklahoma state courts and recommending that Moore’s petition be dismissed as untimely. Over Moore’s objections the district jud ge adopted the magistrate judge’s recommendations, concluding that Houston did not apply to Moore’s state petition and, even if Houston did apply, Moore had not established his state and federal petitions were filed in time to satisfy§ 2244(d). Subsequent to the filing of the instant appeal, thi s Circuit resolved the question of Houston ’s applicability to state habeas petitions and heldthat “the federal mailbox rule announced in Houston v. Lack does not apply to § 2244(d)(2) for purposes of determining when the t olling period for a properlyfiled state petition begins.” Adams v. LeMaster , 223 F.3d 1177, 1181 (10th Cir. 2000), cert. denied , 121 S. Ct. 1198 (2001). Because Houston does not apply, we look to Oklahoma law to determine the date on which Moore’s state petition was considered filed. See id. at 1181–82. Citing Hunnicutt v. State , 952 P.2d 988, 989 (Okla. Crim. App. 1997), the district court con cluded that Moore’s state “application for post-conviction relief . . . is de emed filed upon its receipt by the1 Other cases rejecting the mailbox rule are similarly limited to the context

of criminal appeals. See, e.g. , Banks v. State , 953 P.2d 344, 346 (Okla. Crim. App. 1998); Behrens v. Patterson , 952 P.2d 990, 991 (Okla. Crim. App. 1997). - 5 - Clerk of the District Court of Oklahoma County, noton the date it was provided to prison officials.” (R. Doc. 39 at 4.) At the time we first considered this appeal, we fou nd the district court’s reading of Hunnicutt unpersuasive because that case considered only the narrow issue of when an appeal to the Oklahoma Court of Criminal Appeals is timel y filed. See Hunnicutt , 952 P.2d at 989 (citing Okla. Stat. Ann. tit. 22, § 1087). 1 The issue before us, determining when an initial application for post-conviction review in Oklahoma state court is considered filed, is not addressed in Hunnicutt

. In addition, we were concerned about the potential reach of the Oklahoma Supreme Court’s decision in Woody v. State ex rel. Department of Corrections , 833 P.2d 257, 259–60 (Okla. 1992), in which the court cited Houston with approval and held that the prisoner mailbox rule ap plied to an appeal by a state prisoner appearing pro se. Woody ’s holding is grounded on a statute inapplicable to this appeal. See id. at 258–60 (construing Okla. Stat. Ann. tit. 12, § 990A); see also Hunnicutt , 952 P.2d at 989 (“ Woody rests upon a special statute applicable only in appeals to [the Oklahoma Supreme Court]. . . . There is no parallel provision to Section 990A for appeals in c riminal matters to the Oklahoma Court of Criminal Appeals.”). Woody also indicated, however, that- 6 -

the application of the mailbox rule to pro se priso ners’ appellate filings was mandated by constitutional concerns of access to th e courts and equal protection of the law. See Woody , 833 P.2d at 258–60 & nn.6–7 (citing Okla. Const. art. 2, § 6 and Dowd v. United States , 340 U.S. 206, 208 (1950)). Additionally, Woody cited with approval a Florida case mandating use of the prisoner mailbox rule on purely constitutional grounds independent of any specific statute. See id. at 259 n.8, 260 n.14 (citing Haag v. State , 591 So. 2d 614, 616 (Fla. 1992)). Neither Hunnicutt nor any of the cases following its rejection of th e prisoner mailbox rule addressed the constitutional basis for Woody ’s holding. These observations, along with the lack of relevantcase law construing the Oklahoma Uniform Post-Conviction Procedure Act, Okl a. Stat. Ann. tit. 22, §§ 1080–1089, caused us to certify the following qu estion to the Oklahoma Court of Criminal Appeals: “ [D]oes the prisoner mailbox rule apply to filings i n Oklahoma district courts for post-conviction relief made pursuant to Okla. Stat. Ann. tit. 22, § 1081? ” The Oklahoma Court of Criminal Appeals answered our question in the negative. See Moore v. Gibson , No. O 2001-30, 2001 WL 321989 (Okla. Crim. App. April 4, 2001). After a d iscussion of the definition of “filing” in Oklahoma, the relevant statutory langua ge, and the nature of Oklahoma post-conviction procedure, the court summarized its holding: The term “filed” found in Section 1081 of Oklahoma’ s Uniform Post Conviction Procedure Act means when a properly veri fied2Even if we were to assume Moore’s state petition was actually received,

but not file-stamped, some time before April 24, 19 97, we would still conclude that his federal petition is untimely. The Oklahom a Court of Criminal Appeals affirmed the denial of Moore’s state petition on No vember 4, 1997, ending any § 2244(d)(2) tolling of the AEDPA limitations perio d. By Moore’s own account, he did not file his federal petition until nine day s later. Thus, for his federal petition to be timely, Moore’s state petition neede d to have been received by the Oklahoma court at least nine days before April 23, 1997, to sufficiently toll the limitations period. Because Moore’s state petitionwas not file-stamped until April 24, 1997, we would have to assume that it was received by the Oklahoma court but not file-stamped for well over a week. S uch a long delay between receipt and file-stamping is not supported by the r ecord. - 7 - application for post-conviction relief is deliveredto the proper district court clerk for the purpose of filing. Th e “mailbox rule” does not apply. We find that this holding is not c ontrary to relevant constitutional provisions. Id. at *5. We see nothing in the record to indicate Moore’s st ate petition was received on any day other than April 24, 1997, the date on which it was filestamped. See Okla. Stat. Ann. tit. 22, § 1081 (“The clerk shall docket the application upon its receipt and promptly bring it to the attention of the court . . . .”). Because Oklahoma does not recogni ze the prisoner mailbox rule, it is immaterial when Moore gave his petition to priso n officials, and his state petition was thus filed too late to toll the § 2244 (d) limitations period, rendering his federal petition untimely. 2 Our analysis does not end with the conclusion that Moore has not met the requirements of § 2244(d). Because “§ 2244(d) is n ot jurisdictional,” its one-- 8 -

year limitation period “may be subject to equitable tolling.” Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling “is only available when an inmate diligently pursues his claims and demonstrat es 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). The recordin this case does not reveal sufficiently extraordinary circumstances to warrant equitable tolling. Moore claims he was denied counsel to appeal his De cember 1993 resentencing. However, even crediting his account of the events, he did not initiate his state post-conviction proceedings until April 1997. This delay does not demonstrate that Moore was pursuing his claims diligently. Moo re concedes he “knew that under the AEDPA he had to get his pleadings filed b y April 23, 1997.” (R. Doc. 28 at 3.) He also knew that legal mail in his pris on was subject to delays. But the delay here was hardly extraordinary—Moore claim s that prison officials held his mail for eight days before mailing. Even if we were to toll the statute of limitations by those eight days, Moore’s federal pe tition would still be untimely because he did not file it until nine days after th e final disposition of his state petition. Because Moore’s appeal presented a previously unsettled issue of Oklahoma law concerning the application of the pris oner mailbox rule, we
GRANT a certificate of appealability. However, in lightof the Oklahoma Court- 9 -

of Criminal Appeals’ holding that the prisoner mail box rule does not apply to post-conviction proceedings in that state, we AFFIRM the district court’s dismissal of Moore’s habeas petition as time-barred

.