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

### July 27, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NOAH Q. HILL,

Petitioner-Appellant, No. 04-6351

v. (W.D. Oklahoma) RANDY WORKMAN, Warden,

Respondent-Appellee. (D.C. No. CIV-04-894-F)

ORDER

Before EBEL , MCKAY , and HENRY , Circuit Judges.
Noah Q. Hill, an Oklahoma state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s decision dismissing as untimely his 28 U.S.C. § 2254 petitio n for a writ of habeas corpus. He also seeks leave to proceed in forma pauperis (“ IFP”). We deny Mr. Hill’s application for a COA, deny his request to proceed IFP, and dismiss this appeal.

I. BACKGROUND On November 20, 1995, Mr. Hill pleaded guilty in Ok lahoma County district court to first-degree murder and robbery w ith firearms. On November 20,-2-

1995, the court sentenced him to a term of life imp risonment without parole and a consecutive term of fifteen years’ imprisonment. M r. Hill did not appeal his convictions or sentences. However, on April 21, 20 04, he filed an application for post-conviction relief in the Oklahoma County distr ict court. The Oklahoma County court denied the application, and, on June 2 2, 2004, the Oklahoma Court of Criminal Appeals affirmed that decision. On July 14, 2004, Mr. Hill delivered to prison offi cials a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, he alleged that he had received ineffective assistance of counsel in violation of his Sixth Amendment rights because his attorney had fai led to present mitigating evidence at sentencing and had failed to file a dir ect appeal. The federal district court received Mr. Hill’s pe tition on July 19, 2004, and referred the matter to a magistrate judge. The magistrate judge concluded that Mr. Hill’s petition was untimely and recommend ed dismissal. Mr. Hill objected to that recommendation, but the district c ourt agreed with the magistrate judge and dismissed Mr. Hill’s petition as time-barred.

II. DISCUSSION To obtain a COA, Mr. Hill must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Hill may make this-3-

showing by demonstrating that “reasonable jurists c ould debate whether (or, for that matter, agree that) the petition should have b een resolved in a different manner or that the issues presented were adequate t o deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation marks omitted). “[A] claim can be debata ble even though every jurist of reason might agree, after the COA has been grant ed and the case has received full consideration, that [the] petitioner will not prevail.” Id. at 338. Mr. Hill also seeks to proceed IFP in this appeal. In order to succeed on a motion to proceed IFP, Mr. Hill must show a financi al inability to pay the required filing fees, as well as the existence of areasoned, nonfrivolous argument on the law and facts in support of the issues raise d in the action. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (addressing IF P status requirements on appeal). Here, the decision whether to grant a COA turns on the application the oneyear statute of limitations for § 2254 actions, est ablished by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), a habeas corpus petition must be file d within one year of the latest of: (A) the date on which the judgment became final by the

conclusion of direct review or the expiration of th e time for seeking such review; (B) the date on which the impediment to filing an-4- application created by State action in violation of the Constitution or laws of the United States is remove d, if the applicant was prevented from filing by such State a ction; (C) the date on which the constitutional right asse rted was initially recognized by the Supreme Court, if the r ight has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral rev iew; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered throughthe exercise of due diligence. 28 U.S.C. § 2244(d)(1). As we have noted, Mr. Hill pleaded guilty on Novemb er 20, 1995. He did not seek to withdraw the guilty pleas or otherwise appeal his convictions. Thus, his convictions became final on November 30, 1995, ten days after the entry of judgment and sentence. See O KLA
. S TAT . tit. 22, § 1051. Absent the removal of some impediment to filing, a Supreme Court decision made retroactive to cases on collateral review, the discovery of a factual predi cate, see 28 U.S.C. § 2244(d)(1)(B)–(D), or the tolling of the limitation s period, see 28 U.S.C. § 2244(d)(2), Mr. Hill had until April 24, 1997 (one year after AEDPA’s effective date) to timely file his § 2254 petition. See United States v. Hurst , 322 F.3d 1256, 1260 (10th Cir. 2003) (establishing April 24, 1997 as end of statutory grace period); United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (creating grace period beginning on April 24, 1996), overrule d on other grounds byHurst , 111 F.3d at 1260. However, Mr. Hill did not file h is § 2254 petition until over seven years later.-5-

As in the district court proceedings, Mr. Hill argu es that the one-year limitations period should be equitably tolled. He contends that a copy of 28 U.S.C. § 2244 was not available to him in any of th e facilities in which he was incarcerated and that as a result, he was not aware of AEDPA’s statute of limitations. He adds that it was not until he rece ived the magistrate judge’s report and recommendation that he learned that there were time limits on the filing of a habeas corpus petition. Mr. Hill also invokes the Fifth Circuit’s decision in Egerton v. Cockrell , 334 F.3d 433 (5th Cir. 2005). There, the court con cluded that “[t]he State’s failure to make available to a prisoner the AEDPA, which sets forth the basic procedural rules the prisoner must follow in order to avoid having his habeas petition summarily thrown out of court [constituted ] an impediment” under § 2244(d)(1)(B). Id. at 438. Accordingly, the court held that the one- year limitations period did not begin to run until the p etitioner was transferred to a facility where a copy of AEDPA was available. In this circuit, equitable tolling is only warrante d in “rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). For example, “[e]quitable tolling would be appropriate . . . when a prisoner is actually innocent” or “when an adversary’s conduct–or other uncontrollable circumstances–prevents a prisoner from timely filin g.” Gibson v. Klinger, 232-6-

F.3d 799, 808 (10th Cir. 2000). However, “[s]imple excusable neglect is not sufficient.” Id. Moreover, equitable tolling applies only “when an i nmate diligently pursues his claims.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000). Absent such diligence, “a claim of insuffic ient access to relevant law, such as AEDPA, is not enough to support equitable t olling.” Gibson , 232 F.3d at 808; Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 2000) (noting that “ [the petitioner] has provided no specificity regarding t he alleged lack of access [to AEDPA]” and that “[i]t is not enough to say that [aparticular correctional] facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate” and therefore co ncluding that equitable tolling of the limitations period was not warranted). We agree with the district court that Mr. Hill has not met this circuit’s standard for equitable tolling. More than eight y ears elapsed between the imposition of Mr. Hill’s sentence in November 1995 and the filing of his state post-conviction action in April 2004, and he offers no explanation of this long delay. Moreover, by Mr. Hill’s own account, he fil ed his state post-conviction action when he was still unaware of AEDPA, and the fact that he was able to do so undermines the proposition that a lack of access to AEDPA caused the delay in filing his § 2254 petition. See id. (noting that “the claims [the petitioner] sought to raise are similar to those raised in his direct appeal and motion for state1 We also note that the Fifth Circuit case on which Mr. Hill relies is

distinguishable in important respects. There, the petitioner alleged that within the eight an a half month period following the impositi on of his sentence, he filed numerous requests for legal materials but was informed by prison officials to cease filing these requests because law library pri vileges were unavailable to prisoners in his housing unit. Egerton , 334 F.3d at 435. Moreover, unlike Mr. Hill, the petitioner did not file a state post-conv iction proceeding until afterhe learned about AEDPA. Id. Thus, the prejudicial effect of the lack of acces s to AEDPA was supported by the record in a manner that is lacking here. -7- postconviction relief, thereby undercutting his arg ument that lack of access caused his delay”). 1

II. CONCLUSION Accordingly, we DENY Mr. Hill’s application for a C OA, DENY his request to proceed IFP, and DISMISS this appeal.

Entered for the Court
Robert H. Henry Circuit Judge