* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### SEP 15 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CANDY KAY HARE, Petitioner-Appellant,

v. HOWARD RAY, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 00-6143 (W. District of Oklahoma) (D.C. No. CIV-00-195-C)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, and MURPHY , 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-

This case is before the court on Candy Kay Hare’s pro se request for a certificate of appealability (“COA”). Hare seeks aCOA so she can appeal the district court’s dismissal of her 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be take n from the denial of a § 2254 petition unless the petitioner first obtains a COA). Hare also seeks to proceed in forma pauperis on appeal. Because Hare has not made a substantia l showing of the denial of a constitutional right, she is not en titled to a COA and her appeal is dismissed. See id . § 2253(c)(2). Hare was convicted in Oklahoma state court of murde r in the first degree and sentenced to life imprisonment. Hare’s convict ion was affirmed by the Oklahoma Court of Criminal Appeals (“OCCA”) on Octo ber 31, 1997. Nearly one year later, on October 7, 1998, Hare filed an application for post-conviction relief with the state district court. The applicat ion was denied and Hare failed to file a timely appeal. Hare ultimately filed a seco nd application for postconviction relief seeking an appeal out of time. T he second application was denied on June 22, 1999 and that denial was affirme d by the OCCA on August 26, 1999. Hare did not file the instant § 2254 hab eas petition until January 28,
2000. Hare’s habeas petition was referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In the report and-3-

recommendation (“R & R”) prepared by the magistrate judge, the magistrate raised the timeliness of Hare’s petition sua sponte and recommended that the petition be dismissed because it was filed outside the one-year limitations period set out in 28 U.S.C. § 2244(d). See 28 U.S.C. §2254(d)(1) (providing that the one-year period begins to run on the date petitione r’s conviction became final); Hoggro v. Boone , 150 F.3d 1223, 1226 & n.4 (10th Cir. 1998) (holdi ng that oneyear limitations period is tolled during the periodof time petitioner spends properly pursuing state post-conviction relief but is not tolled during the pendency of an untimely appeal from the denial of p ost-conviction relief). The magistrate judge further concluded that Hare had fa iled to identify any circumstances that would support an equitable tolli ng of the limitations period. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Hare filed a timely objection to the R & R but fail ed to demonstrate that her habeas petition was timely or advance any argum ent as to why the one-year limitations period should be equitably tolled. The R & R was adopted by the district court and Hare’s habeas petition was dismi ssed. The analysis employed by the magistrate judge to su pport his conclusion that Hare’s habeas petition was untimely is thoroug hly set forth in the R & R. Hare has presented no argument that the magistrate judge miscalculated the one-1 Hare’s COA application contains a conclusory statem ent, buried in a

sentence, that she is actually innocent of the crim e of which she was convicted. Even if this court were to consider Hare’s argumentfor the first time on appeal, her unsupported statement asserting her actual inno cence is insufficient to support the equitable tolling of the one-year limitations p eriod. -4- year period. Nor does Hare present any argument as to why the one-year limitations period should be equitably tolled. 1 Before she is entitled to a COA, Hare must make a “ substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Hare may make this showing by demonstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or thatthe questions presented deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000). This court has reviewed Hare’s application for a CO A, her appellate brief, the district court’s Order dated March 22, 2000, the R & R, and the entire record on appeal. That review clearly demonstrates the distr ict court’s dismissal of Hare’s § 2254 petition as untimely is not deserving of further proceedings or subject to a different resolution on appeal. Accordingly, we deny Hare’s request for a COA, deny Hare’s request to proceed on appeal in forma pauperis , and dismiss Hare’s appeal.
ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge