*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BENITO JEROME BOWIE, Petitioner-Appellant,

v. GARY GIBSON; DREW EDMONDSON, Attorney General of the State of Oklahoma, Respondents-Appellees. No. 99-6176 (W.D. Okla.) (D.Ct. No. CIV-98-1447-R)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.1 The district court made no ruling on Mr. Bowie’s request for a certificate of

appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds by United States v. Kunzman , 125 F.3d 1363,1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998).
-2- Appellant Benito Jerome Bowie, an Oklahoma state in mate appearing pro

se , appeals the district court’s decision dismissing, as untimely, his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We de ny Mr. Bowie's request for a certificate of appealability and dismiss his appeal

. 1

On January 30, 1987, a jury convicted Mr. Bowie of first degree murder and the trial court sentenced him to life in prison . The Oklahoma Court of Criminal Appeals affirmed Mr. Bowie’s conviction Ju ly 15, 1991. On October 21, 1991, the state court formally denied Mr. Bowie ’s petition for rehearing. Mr. Bowie did not seek state post-conviction relief unt il April 1, 1998. The state court denied his post-conviction application June 1 9, 1998, and the Oklahoma Court of Criminal Appeals affirmed September 22, 19 98.

Mr. Bowie filed his federal habeas petition October16, 1998, claiming multiple errors by the state trial court. The fede ral district court assigned the matter to a magistrate judge who recommended dismis sing the petition as time--3-

barred. Specifically, the magistrate judge determi ned that because Mr. Bowie’s conviction became final before the effective date o f the Antiterrorism and Effective Death Penalty Act, the limitation period for filing Mr. Bowie’s federal habeas petition did not begin to run until April 24 , 1996, and tolled one year later, on April 23, 1997. The magistrate judge then deter mined the tolling provisions of 28 U.S.C. § 2244(d)(2) did not apply because Mr. Bo wie filed his state postconviction application after the limitation period ended. Because Mr. Bowie did not file his federal habeas petition until October 16, 1998 -- one and one-half years after the limitation period -- the magistrate judge recommended the petition be dismissed as untimely.

The magistrate judge also carefully considered Mr. Bowie’s arguments for equitably tolling the limitation period. In so doi ng, the magistrate judge rejected Mr. Bowie’s contention that his two-year incarcerat ion at the Oklahoma County Detention Center, which contains no law library, so mehow prevented him from timely filing his petition. The magistrate judge d etermined that Mr. Bowie: (1) failed to show he diligently pursued his federal cl aims while incarcerated for four years at another facility; and (2) failed to show h ow the lack of a law library affected his ability to timely file his petition, a s required under Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998). The magistrate-4-

judge also rejected Mr. Bowie’s contention that bot h counsel retained by him failed to timely file his petition. The magistrate judge first noted the evidence presented did not establish actual retention of one attorney and then concluded that even if Mr. Bowie retained both counsel and th ey failed to file his petition, Mr. Bowie nevertheless had one year after he allege dly dismissed his last attorney to timely file his petition. In any event, Mr. Bow ie could not “sit idly by ... knowing that no attorney was pursuing his case and still claim that he has diligently pursued his claims.” Finally, the magis trate judge determined Mr. Bowie’s claim of actual innocence lacked merit beca use the affidavits on which he based his claim, and which allege that four pros ecution witnesses offered false testimony against him, lacked credibility, and even if true, were insufficient “to show by a preponderance of the evidence that no rea sonable juror would have found him guilty of the crime charged.”

In a thorough fifteen-page order, the district court adopted the magistrate judge’s recommendation and dismissed Mr. Bowie’s habeas petition as untimely. After examining the pleadings and affidavits filed by Mr. Bowie, the magistrate’s recommendation, and the credibility and other findi ngs of the state court, the district court concluded that no circumstances warr anted equitable tolling of the limitation period. Specifically, with respect to M r. Bowie’s claim of innocence,-5-

the district court determined no evidentiary hearin g was necessary because the state court performed a full and fair hearing on th e credibility of the affidavits in its post-conviction proceeding. In addition, the d istrict court concluded the affidavits on which Mr. Bowie relied lacked credibi lity because they: (1) recanted previous trial testimony given under oath and subject to crossexamination; (2) contained hearsay statements of in dividuals who did not testify under oath as to the falsity of their prior testimo ny; (3) were deemed incredible by the trial court which reviewed not only the affidav its, but transcripts of the sworn testimony given before it in the state proceeding; and (4) were insufficient to show by a preponderance of the evidence that no rea sonable juror would have found him guilty of the crime charged, especially i n light of another inculpatory witness who did not recant his trial testimony.

On appeal, Mr. Bowie renews his request to equitabl y toll the limitation period because: (1) the Oklahoma county jail lacke d a law library, thereby preventing him access to legal materials and the co urts; and (2) both of his counsel failed to file his petition. While Mr. Bow ie does not expressly renew his claim of actual innocence, he nevertheless attaches the affidavits supporting that claim. Finally, Mr. Bowie raises the same issues p resented in his petition-6-

concerning the merits of his case and alleging erro rs by the state court during his trial.

We review the district court’s factual findings forclear error and its legal bases for dismissal of Mr. Bowie’s § 2254 petition de novo

. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999). In applying these standards, we construe Mr. Bowie’s pro se pleadings liberally, holding them to a less string ent standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

We begin by noting the magistrate judge correctly d etermined the limitation period for filing Mr. Bowie’s federal habeas petiti on did not begin to run until April 24, 1996, and tolled one year later, on April 23, 1997. See 28 U.S.C. § 2244(d)(1); Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). We further agree the tolling provisions of 28 U.S.C. § 2244(d)(2) clearly do not apply because Mr. Bowie filed his state post-conviction application after this limitation period ended. See 28 U.S.C. § 2244(d)(2). (In accord with Allen v. Oklahoma , No. 99-6033, 1999 WL 492804, at *1 (10th Cir. July 13, 1999) (unpublished opinion); Hansell v. LeMaster , No. 98-2207, 1999 WL 258335, at *2 (10th Cir. April 30, 1999) (unpublished opinion).) Because Mr . Bowie did not file his-7-

federal habeas petition until one and one-half year s after the limitation period, the district court properly dismissed the petition as u ntimely.

As to Mr. Bowie’s request for equitable tolling of the statutory limitation period, we agree, for substantially the same reason s set forth in the district court’s Order of April 13, 1999, and the magistrate judge’s Report and Recommendation of January 20, 1999, that tolling is inappropriate under the circumstances of this case. Finding his petition untimely, we decline to address the merits of the remaining issues raised in Mr. Bowie’s petition and on appeal.

Thus, under the circumstances presented and after acareful review of the record, we determine Mr. Bowie fails to make a subs tantial showing of the denial of a constitutional right necessary for issuing a c ertificate of appealability. 28 U.S.C. § 2253(c)(2). Accordingly, we deny Mr. Bowi e’s request for a certificate of appealability and DISMISS the appeal.
Entered by the Court: WADE BRORBY United States Circuit Judge