* This order and judgment is not binding precedent, e xcept under the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 24 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERALD RONALD WRIGHT,

Petitioner-Appellant,

v. WAYNE SMITH,

Respondent-Appellee. No. 98-6324 (D.C. 98-CV-707) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , 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.2

Mr. Wright, a state prisoner appearing pro se, has filed a Notice of Appeal which is construed as a request for a 28 U.S.C. § 2 253 Certificate of Appealability to appeal the district court’s denial of federal habeas relief. The district court dismissed Mr. Wright’s petition as u ntimely filed under the one-year limitation period contained in 28 U.S.C. § 2244(d)( 1). He alleges on appeal that the one-year limitation should be equitably tolled as it was caused by state action depriving him access to legal materials. We deny t he Certificate of Appealability and dismiss the appeal for substantially the same r easons advanced by the court in its order dated July 16, 1998. “A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right.” 28 U.S.C. § 2253(c)(2). Mr. Wright has made no such showing he re. First, Mr. Wright’s petition is untimely. Under 28 U.S.C. § 2241(d), M r. Wright had one year to apply for habeas corpus relief. He applied approxi mately thirteen months after his conviction became final, exceeding the limitati on period. Mr. Wright did file for state post-conviction proceedings, which does toll the period. See Hoggro v.
Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). But, as th e magistrate found, any tolling resulting from post-conviction proceedings still would not prevent the petition from being untimely. Rec. doc. 3, at 5. Second, the fact that Mr. Wright did not have acces s to a legal library3

during the year is not sufficient, by itself, to eq uitably toll the period. “The oneyear time period begins to run in accordance with i ndividual circumstances that could reasonably affect the availability of the rem edy, . . . but requires inmates to diligently pursue claims.” Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (citations omitted). Mr. Wright gives no details o f efforts he made to timely file. He describes none of the severe circumstances that might warrant equitable tolling, e.g., “that a constitutional violation has resulted in the conviction of one who is actually innocent or incompetent.” Id. Mr. Wright has failed to allege constitutional violations that might have resulted in a wrongful conviction. “It is not enough to say that the [prison] lacked all rele vant statutes and case law or that the procedure to request specific materials was inadequate.” Id. We therefore agree with the district court that Mr. Wright’s pet ition was untimely filed and we DENY the petition for a Certificate of Appealability and DISMISS the appeal.

Entered for the Court

Robert H. Henry Circuit Judge