* This order and judgment is not binding precedent, except under the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

### MAR 6 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TEDDY WAYNE WEST, Petitioner-Appellant, No. 00-7102

v. (E.D. Oklahoma) STEVE KAISER, Respondent-Appellee. (D.C. No. 99-CV-578-B)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c);10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument Teddy W. West, a state prisoner proceeding pro se, appeals the district court’s dismissal of his habeas petition filed purs uant to 28 U.S.C. § 2254. We agree with the district court’s finding that Mr. We st’s petition is untimely and that-2-

he has not presented claims for which relief shouldbe granted. Accordingly, we decline to issue a certificate of appealability and dismiss the appeal. Mr. West was convicted of escape from a county jail , robbery with a dangerous weapon, assisting a prisoner to escape, and robbery by force or fear. In his habeas petition, Mr. West alleged that he (1) r eceived ineffective assistance of trial and appellate counsel and (2) was deprived of due process and equal protection through his enhanced sentence. The dist rict dismissed Mr. West’s petition for habeas corpus as untimely under the on e-year limitation period in 28 U.S.C. § 2244(d), and subsequently denied his appli cation for a certificate of appealability. Before us is a renewed application for a certificate of appealability and a motion to proceed in forma pauperis. “In reviewing the denial of a habeas corpus petitio n, we review the district court’s factual findings under a clearly erroneous standard, and its legal conclusions de novo,” keeping in mind that “our rev iew of the state court’s proceedings is quite limited.” Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied , 528 U.S. 1120 (2000). Under the Antiterrorism an d Effective Death Penalty Act of 1996 (AEDPA), Mr. West’s convi ction became final on December 15, 1997, which marked the conclusion of the ninety-day period for filing a petition for certiorari to the Supreme Court. See Locke v. Saffle , 237 F.3d 1264, 1271-72 (10th Cir. 2001) (stating that “ the one-year limitation period-3-

begins to run when the time for filing a certiorari petition expires” and “the period of ‘direct review’ in § 2244(d)(1)(A) includ es the period within which a petitioner can file a petition for a writ of certio rari from the United States Supreme Court, whether or not the petitioner actual ly files such a petition.”) (internal quotation marks and citations omitted). As a result, on December 15, 1997, the one-year limitation period for filing an application for a writ of habeas corpus began to run, see § 2244(d)(1), subject to the tolling provision in § 2244(d)(2). Because Mr. West filed an application for post-conv iction relief in state court on September 8, 1998, the limitation period w as suspended for 256 days until the Oklahoma Court of Criminal Appeals affirm ed the denial of postconviction relief on May 21, 1999. See 28 U.S.C. § 2244(d)(2). Mr. West subsequently filed his habeas petition in federal c ourt on October 28, 1999, 61 days after the one-year time limit expired. The di strict court issued an order determining Mr. West untimely filed his petition an d that no equitable tolling was warranted. On appeal, Mr. West asks us to reconsider his claimthat equitable tolling is warranted. We have held that “AEDPA’s one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.’” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson , 158 F.3d-4-

806, 811 (5th Cir. 1998)). Examples of such circum stances are actual innocence or when uncontrollable circumstances prevent an inm ate from timely filing. “Simple excusable neglect is not sufficient.” Id. , 232 F.3d at 811. In support of equitable tolling, Mr. West argues th at he was unable to file his petition because of the inadequate legal facili ties and legal assistance available in the private correctional facility in w hich he is incarcerated. We have stated that “[a] state may elect to provide legal a ssistance to inmates in lieu of maintaining an adequate prison law library.” Petrick v. Maynard , 11 F.3d 991, 995 (10th Cir. 1993). Legal assistance does not ne cessarily mean assistance from a lawyer; rather, it can mean “adequate assistance from persons trained in the law,” Bounds v Smith , 430 U.S. 817, 828 (1977), such as law clerks, par alegals, volunteer attorneys, or staff attorneys. Mr. West contends that one contract attorney assist s approximately 2,500 inmates at three separate Corrections Corporations of America-owned correctional facilities. In further support of his argument that the limitation period should be equitably tolled, he states that he had to wait eig ht to twelve weeks for assistance from the contract attorney and that he had to wait approximately sixty days for transcripts from the court reporter. We agree with the conclusions of the district courtthat Mr. West’s petitions were untimely and that Mr. West’s pleadings, which we construe liberally-5-

pursuant to Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), suggest no basis for equitable tolling. Specifically, he h as not demonstrated how the unavailability of access to counsel or materials de layed his application, which merely appended his state post-conviction filing. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (rejecting equitable toll ing in part because of similarity of claims raised by petitioner on direct review and in state post-conviction motion). As such, Mr. West has not demonstrated any extraordinary way that he has been prevented from asserting his rights. See id. (suggesting equitable tolling of limitation period when delay is encountered with circumstances over which inmate had no control and inmate has diligently pur sued his claims). In addition, Mr. West provides us with little specificity regard ing the steps he took to diligently pursue his federal claims so as to justi fy equitable tolling of the limitation period. See id. We have thoroughly reviewed the record on appeal, M r. West’s brief, and the district court’s order. Accordingly, we GRANT his motion to proceed in forma pauperis, DENY his request for a certificate of appealability for substantially the same reasons set forth in the dis trict court’s order, and DISMISS

the appeal. Entered for the Court,-6- Robert H. Henry Circuit Judge