F I L E D

United States Court of Appeals

Tenth Circuit

JAN 15 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEREK D. BURGER,

Petitioner - Appellant,

v.

H.N. SCOTT, Warden,

Respondent - Appellee.

No. 01-6285

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-00-2063-M)

Submitted on the briefs:

Gloyd L. McCoy of Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for

Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes,

Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.

McKAY , Circuit Judge.
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After examining the briefs and appellate record, this 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). The case is

therefore ordered submitted without oral argument.

Petitioner Derek D. Burger, an Oklahoma state inmate appearing pro se ,

appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition for writ of

habeas corpus as falling outside the federal statute of limitations. Previously we

determined that Burger had made the required “substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(b)(2), and therefore we granted a

certificate of appealability (COA) and ordered supplemental briefing on the issue

of whether the district court properly dismissed Burger’s petition as untimely. 

Because we conclude that equitable tolling should have been applied in this case,

we reverse and remand to the district court for further proceedings. 

I. Background 

Burger is currently serving a fifty-year sentence for robbery with a firearm. 

He was considered for parole in December of 1996, 1997, and 1998, pursuant to

an annual parole consideration date under existing Oklahoma Pardon and Parole

Board policy, but he was denied parole on each occasion. In July 1997, the

Oklahoma law regarding parole consideration was amended to lengthen the period

of reconsideration after the denial of parole from one to three years for persons
-3-

convicted of a violent crime. See Okla. Stat. Ann. tit. 57, § 332.7 (West 1991 &

Supp. 2002). Consequently, the Oklahoma Pardon and Parole Board informed

Burger on February 17, 1999, that his next parole hearing had been moved from

December of 1999 to December of 2001.

In a state habeas proceeding filed in the Cleveland County District Court,

Burger challenged this action as violating the Ex Post Facto Clause of the United

States Constitution. The circumstances surrounding the timing of this state filing

form the core of the current dispute. While his petition was date-stamped as

“filed” by the state district court on May 12, 2000, Burger contends he actually

mailed his petition to that court on January 7, 2000. Because Oklahoma imposes

no time limits for filing applications for post-conviction relief in the district

courts, see Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App. 2001), the filing

date had no bearing on the timeliness of Burger’s state petition, which was

ultimately denied on the merits by the district court and the Oklahoma Court of
1 As noted by the district court, although Burger filed a petition for writ of

habeas corpus, rather than a post-conviction application, the Oklahoma Court of

Criminal Appeals has recognized that both of these proceedings are filed pursuant

to the Oklahoma Uniform Post-Conviction Procedure Act, Okla. Stat. tit. 22,

§§ 1080-1089. See Delfrate v. Okla. Dep’t of Corr., 991 P.2d 549, 552 (Okla.

Crim. App. 1999); see also Okla. ex rel. Coats v. Hunter, 580 P.2d 158, 159

(Okla. Crim. App. 1978) (noting that the right to writs of habeas corpus in

criminal cases are “incorporated into and amplified by” the Act).

2 There is some confusion in the record concerning the date on which Burger

claims he mailed his state petition. Earlier in this proceeding, Burger argued that

he mailed the petition on January 6, 2000. R., Doc. 9 at 2. With the benefit of

prison records, Burger has argued in later pleadings that the mailing date is

January 7, 2000. See id., Doc. 17 at 2; Aplt. Supp. Br. at 4. The evidence in the

record before this court does not support a mailing date any earlier than

(continued...)

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Criminal Appeals (OCCA). 1 The state court filing date did, however, prove

critical to Burger’s filing in federal court.

Burger filed his federal petition on December 13, 2000, fourteen days after

the OCCA ruled on his state claim. The State responded, arguing inter alia, that

Burger’s federal claim was barred by the one-year statute of limitations pursuant

to 28 U.S.C. § 2244(d)(1). According to the State, Burger’s federal limitations

period began to run on February 17, 1999, the day he received notice of the

change in his parole reconsideration date; consequently, Burger had until

February 17, 2000, to seek federal habeas relief. Therefore, the State argued,

Burger’s federal petition was filed nearly ten months outside the one-year

limitations period. Burger objected to the State’s timeliness argument by alleging

that he had, in fact, mailed his state petition on January 6, 2000, 2

 and that
2

(...continued)

January 7. See id., Doc. 17, ex. C (purported prison mail log showing entry date

of January 7, 2000).

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therefore the federal limitations period should be tolled during the pendency of

his state petition. According to Burger, the four-month delay in getting his

petition “filed” was beyond his control. Specifically, Burger claimed: 

[t]he Cleveland County District Court was playing some type of game

with inmates Petition, that’s why it wasn’t filed until May 12, 2000. 

See there isn’t any [sic] fees in filing a Writ of Habeas Corpus in the

State Courts system, but Cleveland County District Court elected to

charge Petitioner a fee of $122.00. Taken into consideration that

Petitioner’s intention was that his Petition should have been filed on

the 6th or 7th day of January, 2000. Petitioner could not be at fault

because the Cleveland County District Court held his Petition for

four (4) months before it was filed. 

R., Doc. 9 at 2. At the time of his objection, Burger’s only evidence of a January

filing was his notarized verification, which was attached to his original state

petition and dated January 6, 2000. 

The magistrate judge assigned to the case ordered the State to address

Burger’s claim that he timely filed his state petition. The State subsequently filed

a supplemental response stating that 

[t]he undersigned spoke with the Cleveland County Deputy Court

Clerk that handles the habeas filings. She advised that there is

nothing in the records in Cleveland County to either confirm or deny

[Burger’s] claim that he mailed his state habeas petition to them in

January of 2000. Records or copies of pre-filing correspondence are

not logged in or kept by the Cleveland County Court Clerk’s office. 
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Consequently, no records or computer entries exist regarding

[Burger’s] state habeas petition . . . prior to May 12, 2000.

The deputy clerk did advise, however, that such petitions are often

not filed when received, and that they are commonly returned to

prisoners with instructions regarding how to apply for in forma

pauperis status and with instructions on the proper format for the

summons. Once the prisoner provides the information in the manner

instructed, the Clerk takes the pleading to the presiding judge for a

determination of whether it is ready to be filed.

Id., Doc. 13 at 1.

The magistrate judge recommended that Burger’s petition be dismissed as

untimely pursuant to § 2244(d)(1). Specifically, the magistrate judge found the

applicable limitations period began to run on February 17, 1999, the date when

“the factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence.” R., Doc. 15 at 3 (quoting

§ 2244(d)(1)(D)). The magistrate judge rejected Burger’s argument that the

provisions of § 2244(d)(1)(C) (allowing the limitations period to begin on the

date on which the constitutional right asserted in the petition was initially

recognized by the Supreme Court) provided the starting point for the running of

the limitation period. Consequently, the magistrate judge concluded that Burger

had until February 17, 2000, to file his federal habeas claim and that therefore,

absent some applicable tolling provision, Burger’s filing on December 13, 2000,

was untimely.
3 Under the federal prisoner mailbox rule, a pro se prisoner’s cause of action

is considered filed when the prisoner delivers the pleading to prison officials for

mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988).

-7-

The magistrate judge then found that the appropriate limitations period was

not subject to either statutory or equitable tolling. As to statutory tolling, the

magistrate judge noted “[Burger] provides no demonstrative support for the

assertion that his state habeas petition was received by the state district court

prior to its filing date of May 12, 2000.” Id. at 4. Acknowledging Oklahoma’s

refusal to recognize a prisoner mailbox rule for post-conviction applications filed

in the district courts, 3

 the magistrate judge searched for evidence that Burger

delivered a properly verified application for post-conviction relief to the

appropriate district court for the purposes of filing. See Moore, 27 P.3d at 488;

R., Doc. 15 at 5-6. Finding none, the magistrate judge concluded “there is

nothing in the record to indicate that [Burger’s] state petition was received on any

day other than May 12, 2000, when both parties agree the petition was filed in the

state district court.” R., Doc. 15 at 6. Recommending against equitable tolling of

the federal limitations period, the magistrate judge found that “[Burger] has not

diligently pursued his ex post facto claim, and [he] presents no extraordinary

circumstances compelling . . . equitable tolling.” Id. at 7.

Burger objected to the magistrate judge’s report and recommendation and

specifically addressed the timeliness issue, providing additional evidence to the
4 As indicted previously, at some point Burger apparently believed that no

filing fee was required for his petition, suggesting that he may have withheld

payment even after he had a check issued to the county court. See R., Doc. 16 at

2; Doc. 9 at 2. Later, Burger specifically alleged that he included a check for the

appropriate filing fee with his petition in early January, 2000. See id. Doc. 17 at

2, 3. This allegation is not contested by the state. The confusion over Burger’s

payment led the magistrate judge to surmise that the four-month delay between

January 7 (the date of alleged mailing of the petition) and May 12, 2000 (the date

of filing) was due to Burger’s failure to pay a filing fee. See id. Doc. 15 at 4.

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district court that his state petition was properly submitted in January 2000. 

In his objection, Burger alluded to an apparent misunderstanding he had with the

county court about his filing fee, 4 but he nevertheless provided the federal court

with a copy of two checks made out to the Cleveland County Court Clerk. The

first check, No. 017513, was dated January 3, 2000, in the amount of $122.00,

and included a notation indicating that Burger received the check on January 6,

2000. The second check, No. 018862 for the same amount, was dated June 5,

2000. Burger argued that after he mailed his petition and check on January 7, he

received no word from the county court about his case “until the Court requested

an additional $122.00 . . . thus making the total filing fees of $244.00.” Id.

Doc. 17 at 3.

In addition to the two checks, Burger provided a copy of the prison legal

mail log, showing that he placed something in the mail addressed to the Cleveland

County Court Clerk on January 7, 2000. He also provided a copy of the prison’s

notary record log, indicating that he had something notarized for “Cleveland Cty”
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on January 6. Finally, he provided a receipt for payment, issued by the Cleveland

County Court, showing the court’s receipt of check No. 17513 on May 15, 2000. 

Attached to the receipt was a letter from the court clerk, dated June 1, 2000,

requesting prison officials replace check No. 17513 because it was posted as

received more than ninety days after its issuance, making it void. During this

time, Burger’s application remained on file with the county court with a

date-stamp showing the application filed on May 12.

Despite this additional evidence of a timely filing, the district court adopted

the magistrate judge’s recommendation and summarily dismissed Burger’s federal

petition. This appeal followed.

II. Standard of Review 

In an appeal of the dismissal of a federal habeas corpus petition, we

review a district court’s findings of fact for clear error and its conclusions of law

de novo. Davis v. Executive Dir. of Dep’t of Corr. , 100 F.3d 750, 756 (10th Cir.

1996). Specifically, we review de novo the district court’s denial of a habeas

petition based on § 2244(d). See Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir.

2000). However, we review the district court’s decision on equitable tolling of

the limitation period for an abuse of discretion. Woodward v. Williams, 263 F.3d

1135, 1142 (10th Cir. 2001), cert. denied , 122 S. Ct. 1442 (2002).
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III. AEDPA Statute of Limitations 

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), applications for writs of habeas corpus challenging the execution of a

state sentence under § 2241 are subject to a one-year period of limitations. 

According to § 2244(d), that period runs

from the latest of – (A) the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for

seeking such review; (B) the date on which the impediment to filing

an application created by State action in violation of the Constitution

or laws of the United States is removed, if the applicant was

prevented from filing by such State action; (C) the date on which the

constitutional right asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1). In his supplemental brief on appeal, Burger contends that

the district court erred in dismissing his petition as untimely because his federal

habeas petition was filed within one year of the OCCA’s decision to deny state

relief. This argument is without merit as it ignores the fundamental structure of

the federal statute, which incorporates the concept of exhaustion of state remedies

into a tolling provision rather than into the limitation itself. See 28 U.S.C.

§ 2244(d)(2); Carey v. Saffold, 122 S. Ct. 2134, 2138 (2002) (“AEDPA’s

limitations period – with its accompanying tolling provision . . . promotes the

exhaustion of state remedies while respecting the interest in the finality of state
5

In his request for a COA, Burger alternatively argued that the limitations

period governing his claim should begin on March 28, 2000, pursuant to

§ 2244(d)(1)(C), which states that the period shall run from “the date on which

the constitutional right asserted was initially recognized by the Supreme Court,

if the right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” Burger relied on Garner v.

Jones, 529 U.S. 244 (2000), decided March 28, 2000, as a case newly recognizing

the constitutional right to be free from ex post facto violations due to retroactive

changes in parole reconsideration frequency. This particular argument concerning

timeliness was not further addressed by Burger in his supplemental briefs in this

(continued...)

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court judgments.”) (quotation omitted). We recognize that, as a federal statute

that interacts with state procedural rules, § 2244(d) will sometimes force a state

prisoner to act expeditiously to preserve his federal claims despite the procedural

lenience of state law, which may forgive substantial delay. This is especially true

in a case, such as this, where the State provides no time limit for filing an initial

habeas petition in the district courts. Nevertheless, Congress did not draft the

federal limitations period to begin running only at the end of a particular state’s

exhaustion process. Instead, the statute is clear that the limitations period starts

from the latest of four specific dates, but that the period may be tolled once the

state court exhaustion process has begun. See § 2244(d)(1),(2). In the present

case, our review of the record convinces us that the district court was correct in

concluding that Burger’s case was governed by § 2244(d)(1)(D), thus starting a

one-year limitations period beginning on February 17, 1999, the undisputed date

Burger learned of the change in his parole reconsideration date. 5 Burger’s federal
5

(...continued)

court. Nevertheless, we conclude the argument has no merit. Having reviewed

the case, we agree with the district court that Garner does not newly recognize

either a right concerning ex post facto laws generally, or a more focused

constitutional right derived from the proposition that a retrospective decrease in

the frequency may potentially change the quantum of criminal punishment. See

Garner, 529 U.S. at 250 (reiterating the standard first recognized and adopted in

1995 in California Department of Corrections v. Morales, 514 U.S. 499 (1995)).

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application, filed on December 13, 2000, was therefore untimely absent some

reason to toll the statute.

IV. Statutory Tolling 

Burger argues that he “perfected” his state habeas corpus petition by

presenting it, along with a check for the proper filing fee, to prison officials on

January 7, 2000, thus tolling the one-year limitations period pursuant to

§ 2244(d)(2). That section states that “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.” 28 U.S.C. § 2244(d)(2). According to Burger,

his state petition was “properly filed” on January 7, 2000, and remained pending

until the OCCA affirmed its denial on November 29 , 2000. Thus, given the

benefit of statutory tolling, Burger contends that his federal petition was timely

filed on December 13, 2000.
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In enacting § 2244(d)(2), Congress did not provide guidance on the

meaning of the term “properly filed.” See Adams v. LeMaster, 223 F.3d 1177,

1181 (10th Cir. 2000). For purposes of this section, however, the Supreme Court

has stated:

An application is “filed,” as that term is commonly understood, when

it is delivered to, and accepted by, the appropriate court officer for

placement into the official record. And an application is “ properly

filed” when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings. These usually prescribe,

for example, the form of the document, the time limits upon its

delivery, the court and office in which it must be lodged, and the

requisite filing fee. 

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations and footnote omitted) (emphasis

in original). This court has similarly stated,

[w]e believe that a “properly filed” application is one filed according

to the filing requirements for a motion for state post-conviction

relief. These requirements may include: (1) the place and time of

filing; (2) the payment or waiver of any required filing fees; (3) the

obtaining of any necessary judicial authorizations that are conditions

precedent to filing, such as satisfying any filing preconditions that

may have been imposed on an abusive filer; and (4) other conditions

precedent that the state may impose upon the filing of a

post-conviction motion.

Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote

omitted). Thus, “state procedural law must govern when determining whether

a state petition is ‘properly filed.’” Adams, 223 F.3d at 1181 (citing cases).

Apart from the State’s response to the district court reflecting the practice

of the Cleveland County Court for accepting initial habeas applications, the
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parties have provided no guidance on the particular state-law requirements for

such filings in the district courts. The State’s response suggests, at least, that the

Cleveland County Court insists that petitioners comply with certain minimum

requirements before that court will accept a document as filed. Both the

Oklahoma Supreme Court and the OCCA have indicated that state filing

requirements, at least at the appellate level, are interpreted strictly. See Dubuc v.

Sirmons, No. 93793, 2001 WL 744467, at *3 (Okla. July 3, 2001) (unpublished)

(“The Court of Criminal Appeals deems itself without cognizance of an appeal

where the pro se prisoner fails timely to comply with the statutory cost

requirements. The presence of the pauper’s affidavit is a sina qua non of the

filing’s sufficiency.”); Behrens v. Patterson, 952 P.2d 990, 991 (Okla. Crim. App.

1997) (“[S]tate law and this Court’s Rules establish the filing date . . . as the date

when . . . the item is actually received by the Clerk before the close of business in

proper order and with the necessary number of copies and all necessary filing

fees, or a pauper’s affidavit for waiver of filing fees.”).

Significantly, the OCCA has also held that initial habeas proceedings in

Oklahoma district courts are considered commenced, and thus “filed” for

purposes of Oklahoma’s post-conviction statute, “when a properly verified

application for post-conviction relief is delivered to the proper district court for

the purpose of filing.” Moore, 27 P.3d at 488 (emphasis added). In Moore, the
6

In Moore II, petitioner was given until April 23, 1997, to file his federal

habeas petition, but his state post-conviction application was date-stamped

April 24, 1997, precluding statutory tolling of the federal limitation period. On

the record before us in that case, we noted that, even if we were to assume

petitioner’s state application was received, but not file-stamped before the federal

deadline, we would conclude it untimely because his federal petition was filed

nine days after the OCCA affirmed the denial of his state petition. To conclude

otherwise, we noted, “we would have to assume that it was received by the

Oklahoma court but not file-stamped for well over a week. Such a long delay

between receipt and file-stamping is not supported by the record.” Moore, 250

F.3d at 1299 n.2. A significantly different record presents itself in the present

case. Burger claims to have filed his state application roughly forty days before

the federal deadline, yet he filed his federal petition only fourteen days after the

OCCA affirmed the state district court’s denial of his claims. Nevertheless,

despite the arguable timeliness of Burger’s petition, the record is devoid of

evidence demonstrating Burger’s petition moved beyond its delivery to prison

officials and was actually delivered to the state district court in accordance with

Oklahoma law.

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OCCA rejected a mailbox rule for pro se prisoners’ initial post-conviction filings

in the Oklahoma district courts, thus directing the inquiry as to whether a state

petition is “properly filed” for purposes of § 2244(d) to an examination of

evidence showing that the proper documents were either delivered to or received

by the courts, rather than to or by prison officials. Thus, in Moore v. Gibson,

250 F.3d 1295, 1288-89 (10th Cir.), cert. denied , 122 S. Ct. 476 ( 2001)

(hereinafter Moore II) , we rejected the prisoner’s claim that his state petition was

“properly filed” upon delivery to prison officials, and held his federal habeas

petition untimely under § 2244(d) when there was no additional evidence of either

receipt or delivery to the state court beyond the court’s file-stamp-date. 6
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Oklahoma’s rejection of the prisoner mailbox rule for initial

post-conviction filings and our previous ruling in Moore II are fatal to Burger’s

claim for statutory tolling in the present case. The magistrate judge concluded

that Burger failed to demonstrate his habeas petition was received by the state

district court prior to its filing date of May 12, 2000, and this conclusion is

supported by the record. As our ruling in Moore II indicates, evidence showing

that Burger’s petition (whether “perfected” or not) was given to prison officials is

not relevant to the question of whether it was actually delivered to the proper

district court for the purposes of filing so as to statutorily toll the federal statute

of limitations. See Moore II, 250 F.3d at 1298-99 (“Because Oklahoma does not

recognize the prisoner mailbox rule, it is immaterial when [petitioner] gave his

petition to prison officials.”). Burger offers no evidence beyond his submissions

to prison officials to demonstrate that a properly verified application for

post-conviction relief was actually delivered to the Cleveland County Court prior

to May 12, 2000, and relies on speculation to account for the four-month delay

between January 7 and May 12, 2000. We have independently reviewed the

record for evidence of delivery to or acceptance by the state district court, and we

have found none that mandates that this court retreat from the clear import of our

holding in Moore II that, in Oklahoma, evidence of delivery to prison officials, by
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itself, is insufficient to demonstrate that a post-conviction application is “properly

filed” in the state courts in order to statutorily toll the federal limitation period.

V. Equitable Tolling 

The same evidence that we conclude is immaterial to a claim of statutory

tolling under § 2244(d), however, compels a different conclusion in our review of

Burger’s claim in equity. In Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998),

this court held that § 2244(d) is not jurisdictional, but rather is subject to

equitable tolling. In determining whether equitable tolling is appropriate, we

recognize that “[d]ismissal of a first federal habeas petition is a particularly

serious matter, for that dismissal denies the petitioner the protections of the Great

Writ entirely, risking injury to an important interest in human liberty.” Lonchar

v. Thomas, 517 U.S. 314, 324 (1996). At the same time, equitable tolling should

not be used to thwart the intention of Congress in establishing a statute of

limitations for habeas claims. Accordingly, we have limited equitable tolling of

the one-year limitations period to “rare and exceptional” circumstances. Gibson,

232 F.3d at 808. Therefore, 

[e]quitable tolling would be appropriate, for example, when a

prisoner is actually innocent, when an adversary’s conduct – or other

uncontrollable circumstances – prevents a prisoner from timely

filing, or when a prisoner actively pursues judicial remedies but files

a defective pleading during the statutory period. Simple excusable

neglect is not sufficient.
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Id. (citations omitted); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

2000) (“[Equitable tolling] is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.”).

In this case, the magistrate judge summarily found that Burger had not

diligently pursued his ex post facto claim. While published opinions addressing

this issue are few, this Circuit has generally declined to apply equitable tolling

when it is facially clear from the timing of the state and federal petitions that the

petitioner did not diligently pursue his federal claims. See, e.g., Adams, 223 F.3d

at 1184 (holding that “[petitioner’s] nearly ten-year hiatus from pursuit of his

federal petition and his repetitive second state petition filed days before

expiration of the applicable federal statute of limitations does not demonstrate the

requisite diligence to justify equitable tolling.”); Miller, 141 F.3d at 978 (holding

petitioner did not diligently pursue federal claims during the time between the

completion of his state post-conviction review in October 1993, and his

subsequent federal filing in July 1997); cf. Marsh, 223 F.3d at 1220 (noting that

with the exception of an eight-month delay following the dismissal of a first

federal habeas petition, petitioner diligently pursued his claims). These earlier

cases provide only limited guidance on the issue of diligence in this case,

however, as they contain significantly different factual situations, often involving
-19-

stale convictions and the subsequent passage of AEDPA or other law affecting the

statute of limitations. 

The limitations period that attaches to Burger’s claim arises under

§ 2244(d)(1)(D), which postpones the running of the one-year statute of

limitations to “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” 

28 U.S.C. § 2244(d)(1)(D). Under the clear language of the statute, Burger had a

right to toll the federal limitations period at any time during that year by

delivering a properly verified application for post-conviction relief to the state

district court. For purposes of equitable tolling in the present case, it is enough

for this court to say that evidence of a proper filing during that period and under

the applicable state law may be sufficient to meet the requirement that an inmate

diligently pursue his claims. 

The magistrate judge also found that Burger “present[ed] no extraordinary

circumstances compelling the equitable tolling of the limitation period.” 

R., Doc. 15 at 7. On occasion this court has held that certain allegations of

exceptional circumstances are inadequate to justify equitable tolling. See, e.g.,

Gibson, 232 F.3d at 808 (holding petitioner’s alleged ignorance of AEDPA’s

statute of limitations is insufficient to warrant equitable tolling); Marsh, 223 F.3d

at 1220 (holding delays caused by prison inmate law clerk and law library
-20-

closures does not justify equitable tolling). The parties have not provided, nor

have we found any cases where this court has reviewed the same or similar

circumstances presented by Burger in this case. 

Although not in the context of AEDPA’s limitations provision, the Supreme

Court has applied the doctrine of equitable tolling to extend a federal limitations

period where a claimant has actively pursued his judicial remedies by filing a

defective state pleading during that period. In Burnett v. N.Y. Cent. R.R.,

380 U.S. 424 (1965), the Court noted the following as considerations favoring

equitable tolling in that case: “Petitioner here did not sleep on his rights but

brought an action within the statutory period in the state court of competent

jurisdiction. . . . Petitioner, then, failed to file . . . in the federal courts, not

because he was disinterested, but solely because he felt that his state action was

sufficient.” Id. at 429. The Supreme Court has also indicated that equitable

tolling may be applied where a court has led a particular plaintiff to believe that

he or she had done all that is required under the circumstances. See Baldwin

County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). 

We are guided by similar considerations in the present case. While

Oklahoma imposes no time limits for filing applications for post-conviction relief

in the district courts, since 1996 Oklahoma inmates have been aware that they

have one year in which to file their claims in state court in order to benefit from
7 While the OCCA has been comparatively silent on the issue, both the

United States Supreme Court and the Oklahoma Supreme Court have referred to

(continued...)

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tolling pursuant to § 2244(d)(2). The record in this case shows that Burger was

given notice of the change in his parole reconsideration date on February 17,

1999. Therefore, in early January of 2000, he attempted to file with the

Cleveland County Court what he believed to be a sufficient state habeas petition. 

He drew a check on January 3, signed and verified his petition before a notary

public on January 6, and placed the documents in the prison mail on January 7. 

Nevertheless, over four months elapsed from that date before Burger’s petition

was stamped “filed,” during which time the record before us is silent. 

The record then shows that the district court stamped his petition as filed

on May 12, 2000, despite the fact that the check for the filing fee was over ninety

days old and was therefore void. That check was “receipted” on May 15, but

returned to Burger for a replacement check. The record also shows that a second,

valid check was sent on or about June 5, 2000; nevertheless, the state district

court considered Burger’s application timely filed as of the application’s file date

of May 12. Overall, the record includes substantial circumstantial evidence that

Burger delivered a properly verified application to the Cleveland County Court on

the date alleged and that the court was in possession of his petition during the

entire four-month period. 7

 A careful review of this evidence demonstrates that
7

(...continued)

the use of circumstantial evidence to resolve difficult questions concerning the

exact date of a prisoner filing. See Houston, 487 U.S. at 275-76; Woody v. State

ex rel. Dep’t of Corr., 833 P.2d 257, 258 (Okla. 1992).

-22-

Burger did not sleep on his federal rights, but rather believed that his state

petition was sufficient to begin the State’s process of reviewing his claim, thus

tolling the federal statute. Given the opportunity to rebut this evidence at the

federal district court level, the State was unable to present any evidence showing

that Burger did not diligently pursue his claim or that the four month delay was

otherwise due to circumstances within Burger’s control. 

Burger’s request for equitable tolling must also be reviewed in light of the

unique procedural impediments affecting the timing of his petition. The fact that

Oklahoma does not apply a mailbox rule to initial habeas petitions forces pro se

prisoners to rely on the good faith of not only prison officials, but also of state

court employees to see that their petitions are expeditiously processed. Moreover,

the fact that the Cleveland County District Court keeps no records or copies of

pre-filing correspondence or of partially filed or insufficient petitions places the

burden solely on prisoners to collect evidence beyond the prison’s logs to

demonstrate delivery to that court. Such impediments needlessly complicate the

federal court’s efforts to determine the source of any delay, and erode the
-23-

principles embodied in AEDPA’s limitations period and accompanying tolling

provision by encouraging premature and needless federal filings.

While there is inherent tension between the federal limitations period in

§ 2244(d) and the requirement that prisoners exhaust state remedies before

proceeding to federal court on their claims, see, e.g., Duncan v. Walker, 533 U.S.

167, 185-86 (2001) (Breyer, J., dissenting), the Supreme Court recently warned

against interpretations of AEDPA that exacerbate this tension. Saffold, 122 S. Ct.

at 2138. Rejecting California’s restrictive interpretation of the term “pending”

for the purposes of statutory tolling under § 2244(d)(2), the Court stated:

The exhaustion requirement serves AEDPA’s goal of promoting

comity, finality, and federalism, by giving state courts the first

opportunity to review the claim, and to correct any constitutional

violation in the first instance. And AEDPA’s limitations period –

with its accompanying tolling provision – ensures the achievement of

this goal because it promotes the exhaustion of state remedies while

respecting the interest in the finality of state court judgments.

California’s interpretation violates these principles by encouraging

state prisoners to file federal habeas petitions before the State

completes a full round of collateral review. This would lead to great

uncertainty in the federal courts, requiring them to contend with

habeas petitions that are in one sense unlawful (because the claims

have not been exhausted) but in another sense required by law

(because they would otherwise be barred by the 1-year statute of

limitations).
8

Saffold involved the timeliness of a federal habeas petition filed under

28 U.S.C. § 2254, with its accompanying exhaustion requirement found in

§ 2254(b). While no statutory exhaustion requirement applies to petitions filed

pursuant to § 2241, it is well-settled that claims raised in § 2241 petitions must

be exhausted before a federal court will hear them. See Montez v. McKinna,

208 F.3d 862, 866 (10th Cir. 2000) (“A habeas petitioner is generally required to

exhaust state remedies whether his action is brought under § 2241 or § 2254.”).

-24-

Id. (quotations and citations omitted) (emphasis in original). 8 These broader

policies, combined with the unique facts of the present case that (1) Burger claims

to have filed, and has a verified affidavit and prison logs, as well as other relevant

evidence to support a filing within the limitations period; (2) Oklahoma has

rejected the prisoner mailbox rule for initial habeas filings in the district courts;

(3) the Cleveland County District Court keeps no records of attempts to file or of

insufficient filings; (4) Burger’s state petition was ultimately accepted as timely

filed despite an apparent deficiency in the fee; and (5) Burger’s federal petition

was filed within two weeks of the completion of his state exhaustion process, lead

this court to conclude that Burger diligently pursued his judicial remedies and

failed to timely file his federal petition due solely to extraordinary circumstances

beyond his control. 

The magistrate judge found that Burger “provide[d] no demonstrative

support for the assertion that his state habeas petition was received by the state

district court prior to its filing date of May 12, 2000.” R., Doc. 15 at 4. The

magistrate judge also recommended the district court deny equitable tolling,
-25-

based, in part, on Burger’s failure to demonstrate that he diligently pursued his

federal claim. In his objections to the report and recommendation, however,

Burger presented the evidence, listed above, in support of his contention that he

delivered a properly verified application to the state district court during the

federal limitation period. Although the district court summarily adopted the

magistrate judge’s report and recommendation “in all respects,” the court did not

discuss its rejection of this relevant and uncontroverted evidence. As the

foregoing discussion indicates, however, Burger has made a sufficiently

compelling case for a court to find that equitable tolling was appropriate. 

Therefore, we conclude that the district court should have applied equitable

tolling to relieve Burger from the one-year statute of limitations. 

VI. Conclusion 

The district court’s dismissal of Burger’s petition for habeas corpus as

untimely is AFFIRMED in part, REVERSED in part, and the matter is

REMANDED for application of equitable tolling and consideration of the merits

of Burger’s petition.