* This order and judgment is not binding precedent, e xcept under the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

### FEB 2 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DAVID BEHRENS,

Petitioner-Appellant,

v. GARY L. GIBSON, Warden,

Respondent-Appellee.

DAVID BEHRENS,

Petitioner-Appellant,

v. DAN REYNOLDS,

Respondent-Appellee. No. 00-6180 (D.C. No. 99-CV-900) (W.D. Okla.)

No. 00-6203 (D.C. No. 93-CV-1688-W) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argume nt. Petitioner seeks review of two district court order s denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254: on e seeking § 2254 relief directly (our No. 00-6180) and the other seeking to “reopen” his 1993 petition for a writ of habeas corpus, which was dismissed for fa ilure to exhaust state remedies (our No. 00-6203). The matter is now before this c ourt on petitioner’s applications for certificates of appealability (COA ). To qualify for a COA, a § 2254 movant must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this stan dard, petitioner must show that his issues are debatable among jurists of reason, s ubject to a different resolution on appeal, or deserving of further proceedings. See Montez v. McKinna , 208 F.3d 862, 869 (10th Cir. 2000). Petitioner was convicted in Oklahoma state court intwo separate prosecutions. He was sentenced in April of 1982 to consecutive terms of imprisonment of eight, thirty-seven, and ninety-nin e years. He did not file a direct appeal. In 1983 he filed his first state po st-conviction application, which was denied by the state trial court in July of 1984 . The Oklahoma Court of-3-

Criminal Appeals subsequently dismissed that appeal as untimely. He filed his second state application on April 22, 1997, and the state court denied relief on April 28. The Oklahoma Court of Criminal Appeals d eclined jurisdiction over the appeal from this second application, again on groun ds of untimeliness. Petitioner then sought relief by way of mandamus, which was de nied in November of 1997.
See Behrens v. Patterson , 952 P.2d 990, 992 (Okla. Crim. App. 1997). His third state application was filed shortly thereafter and denied by the state trial court in February of 1998. The Oklahoma Court of Criminal Appeals affirmed the denial in June of 1998. Petitioner filed his first federal habeas corpus pe tition in September of 1993. The district court denied relief for failure to exhaust state remedies. Petitioner appealed and we affirmed. Behrens v. Reynolds , No. 94-6051, 1994 WL 562016, at **1 (10th Cir. Oct. 13, 1994) (u npublished disposition). The present petition was filed in June of 1999, nea rly a year after the final disposition of his third state post-conviction appl ication and well beyond the grace period established following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998) (where petitioner’s con viction became final before AEDPA’s effective date, one-year period for filing federal habeas petition began to run April 24, 1996). See also 28 U.S.C. § 2244(d)(1).1 There is also no tolling by virtue of the third state post-conviction

proceeding filed in November of 1997 because by the n the statutory AEDPA period had run. -4- The time during which petitioner’s state habeas app lication was pending does not count toward the limitations period. See 28 U.S.C. § 2244(d)(2). Thus, the limitations period was tolled until April 28, 1 997, when the state trial court denied his second application. In addition, he is entitled to a tolling period during which he could have sought an appeal under state law, see Gibson v. Klinger , 232 F.3d 799, 804 (10th Cir. 2000), which in petiti oner’s case was thirty days. Although petitioner apparently attempted to appeal, the appeal was not timely filed. However, as petitioner acknowledges, he didnot file his second federal habeas corpus proceeding until 1999, which was well beyond the AEDPA grace period, as properly tolled. 1 Petitioner also argues that the limitations period should be equitably tolled, claiming, among other factors, lack of access to th e prison law library and the fact that the AEDPA changed two hundred years of federal habeas corpus jurisprudence (requiring the filing of federal peti tions within a fixed time period). The district court determined, however, that petiti oner was not diligent in pursuit of his habeas claims. We agree. Petitioner waited nine years from the denial of his first state post-conviction application before filing his first federal application. After that dismissal was affirmed by this court (for failure to exhaust-5-

state remedies), he waited another two and a half y ears before filing his second state post-conviction application. Finally, even a fter his third state postconviction action was dismissed, he waited almost ayear before filing the federal habeas petition underlying these appeals. Petitioner’s excuses for delayed filings are unpers uasive and sound as neglect. However, a claim of excusable neglect is insufficient because a petitioner must diligently pursue his federal habeas corpus claims. Gibson , 232 F.3d at 808. Moreover, “a claim of insufficien t access to relevant law, such as AEDPA, is not enough to support equitable tolling.” Id. (citing Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998)). That petition er may have learned of the AEDPA’s filing limitations too late is also unavailing. See Miller , 141 F.3d
at 978. In case No. 00-6203, petitioner also argues that th e district court erred in denying his motion to reopen the 1993 federal habea s action and to amend that petition. The district court construed this motionas one brought pursuant to Fed. R. Civ. P. 60(b), which grants to district cou rts limited authority under which to reopen final judgments. The only applicable pro vision under that rule is section six, which vests power to vacate judgments for “any other reason justifying relief from the operation of the judgmen t.” Fed. R. Civ. P. 60(b)(6). This power, however, is to be utilized only in extr aordinary circumstances.-6-

See Johnston v. Cigna Corp. , 14 F.3d 486, 493 (10th Cir. 1993). Such motion i s directed to the sound discretion of the district court. See Cashner v. Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996). In addition, the sole purpose of reopening the judgment in this case was to amend th e initial habeas corpus pleading so that his claims filed in the 1999 feder al habeas action could relate back to the earlier action. See R. Doc. 24, at 1 (citing Fed. R. Civ. P. 15 and 60(b)). Contrary to petitioner’s arguments, the second habe as petition was more than just a Rule 15 amendment. Rather, it was a se parate pleading, filed nearly six years after the first petition. See Marsh v. Soares , 223 F.3d 1217, 1219 (10th Cir. 2000) (“Moreover, ‘a § 2254 petition can not relate back to a previously filed petition that has been dismissed without prej udice because there is nothing for the current petition to relate back to.’” (quoting Nyland v. Moore , 216 F.3d 1264, 1266 (11th Cir. 2000)). The district court d id not err in concluding that “a habeas petition filed after a previous petition has been dismissed without prejudice for failure to exhaust state remedies doe s not relate back to the earlier petition.” Marsh , 223 F.3d at 1220. See also Rowe v. LeMaster , 225 F.3d 1173, 1175 (10th Cir. 2000) (noting that under state counterpart to Rule 15, state court did not permit amendment where first habeas proceed ing had been reduced to final judgment).-7-

As we have recently held, under Rule 15(c) an untim ely amendment to a § 2255 motion, which by additional facts clarifie s or amplifies a claim in the original motion, may, in the discretion of the dist rict court, relate back to the original motion only if the original motion was tim ely filed and if the proposed amendment does not seek to add a new claim or insert a new theory into the case.
See United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10th Cir. 2000). In this case, the first federal habeas action concluded in 1994. Plaintiff’s motion, filed in 1999, sought to assert separate and distinct cla ims. The district court did not abuse its discretion in denying defendant’s request to amend his petition. See id. Petitioner has failed to make a showing in either c ase sufficient to obtain a COA. Accordingly, the applications for certificates of appealability are DENIED, and the appeals are DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge