*This order and judgment is not binding precedent except under the doctrines of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

### FEB 9 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ THOMAS G. WEBER, Petitioner-Appellant,
v. RICHARD SOARES; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 98-1282 (D. Colo.) (D.Ct. No. 97-D-2570)

____________________________ 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 materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Thomas G. Weber, a pro se inmate, appeals the district court’s dismissal for procedural default of his habeas peti tion filed under 28 U.S.C. § 2254, and denial of a certificate of appealability. We deny Mr. Weber’s request to proceed in forma pauperis , deny his request for a certificate of appealabili ty, and dismiss his appeal.
On June 6, 1986, Mr. Weber received a conviction fo r six counts of aggravated robbery and a sentence of six twenty-eig ht-year sentences, to run concurrently. During the period from August 11, 19 88 to January 23, 1989, Mr. Weber unsuccessfully filed a direct appeal to the C olorado Court of Appeals and the Colorado Supreme Court. In 1995, Mr. Weber fil ed a post-conviction motion with the state district court which denied the moti on as time-barred. The Colorado Court of Appeals affirmed the denial, and on April 14, 1997, the Colorado Supreme Court denied his petition for writof certiorari.
Mr. Weber filed his § 2254 habeas petition December9, 1997. The petition is dated November 13, 1997. Because the deadline f or Mr. Weber’s petition expired several months earlier on April 23, 1997, t he district court issued an order to show cause why he did not timely file his petiti on. After reviewing Mr. Weber’s response, the district court issued an Orde r of Dismissal, finding Mr.-3-

Weber procedurally defaulted his claims because he untimely filed his petition. In a thorough discussion, the district court found Mr. Weber failed to make a showing as to his untimely filing under either the cause-and-prejudice standard or the fundamental miscarriage-of-justice test. Speci fically, the district court found Mr. Weber’s reliance on alleged misinformation from his counsel as to his appeal rights, allegedly received more than six years earl ier, did not constitute “an objective factor external to the defense that imped ed his efforts to comply with” procedural state post-conviction rules. In dismiss ing the petition, the district court also found Mr. Weber made only “vague and con clusory allegations of legal innocence” rather than stating “a colorable claim o r showing of actual or factual innocence.”
On appeal, Mr. Weber claims the district court erre d in: (1) construing his letter to the clerk as a notice of appeal and petit ion for certificate of appealablity; (2) dismissing his application for a writ of habeas corpus; (3) refusing to appoint him counsel; and (4) failing to address his complai nt that prison officials denied him access to legal assistance.
We agree with the district court that Mr. Weber’s p etition is untimely and barred by 28 U.S.C. § 2244(d). Mr. Weber’s convict ion became final June 6,-4-

1986, and his direct appeal ended January 23, 1989. Under § 2244(d)(1), when a conviction becomes final before April 24, 1996, the deadline for filing a § 2254 petition expires April 23, 1997. See Hoggro v. Boone , 150 F.3d 1223, 1225-1226 (10th Cir. 1998). A properly filed state post-conv iction application may toll this period. 28 U.S.C. § 2244(d)(2). Because the Color ado state courts denied review of Mr. Weber’s application for post-conviction reli ef as untimely, we cannot toll the grace period for the time of his state post-con viction application.
Mr. Weber did not file his petition until December 9, 1997 – several months after the deadline. Even under the “prisone r mail box” rule and assuming Mr. Weber gave his petition to prison officials formailing on the date he allegedly signed it – November 13, 1997 – his petit ion is still untimely. See Hoggro , 150 F.3d at 1226 n.3.
After reviewing the record, we agree with the distr ict court that Mr. Weber fails to demonstrate sufficient cause for the defau lt or actual prejudice as a result of the alleged violation of federal law, or that fa ilure to consider his claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). We affirm the dismissal of h is habeas petition for substantially the same reasons stated in the distri ct court’s comprehensive Order-5-

of Dismissal dated June 22, 1998.
As to Mr. Weber’s argument the district court erredin refusing to appoint him an attorney, no constitutional right to counsel exists “beyond the appeal of a criminal conviction, and ... generally appointment of counsel in a § 2254 proceeding is left to the court’s discretion.” Swazo v. Wyoming Dep’t of Corrections State Penitentiary Warden , 23 F.3d 332, 333 (10th Cir. 1994). We hold the district court did not abuse its discretio n in declining to appoint counsel in this case.
Finally, Mr. Weber claims the district court erred in failing to address his argument that “his access to legal assistance behin d prison walls was obstructed and hindered and that he did not have the ability t o gain access to his trial court and appellate court records so he could perfect his claims.” A review of the record shows the district court noted Mr. Weber’s “ access to the courts” argument, but in rejecting it, did not discuss it. A further review of the record shows Mr. Weber fails to provide any detailed expla nation of how denial of access to legal assistance occurred, or why it tooksix years to file for habeas corpus relief, despite his alleged denial of legal assistance or inability to obtain the records he claims he needed. Moreover, Mr. Web er did not provide any-6-

documentation showing he unsuccessfully attempted t o obtain his court records. As a result, he fails to claim any specific prejudi ce to litigation due to denial of legal assistance or inability to obtain his records . Such vague and conclusory allegations, without more, are insufficient to rais e a claim for denial to access the courts. See Lewis v. Casey , 518 U.S. 343, 351 (1996). Thus, the district cou rt’s failure to specifically address this contention doe s not change the outcome.
For the reasons stated, we deny Mr. Weber’s requestto proceed in forma pauperis and for a certificate of appealability and DISMISS his appeal. Entered by the Court: WADE BRORBY United States Circuit Judge