*

 This order is not binding precedent except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 23, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LAWRENCE L. MAYES,

 Petitioner - Appellant,

v.

GREG PROVINCE, Warden,

 Respondent - Appellee.

No. 10-6021

(D.C. No. 5:09-CV-1170-C)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Lawrence L. Mayes pleaded guilty in New Mexico state court to robbery

with a dangerous weapon after former conviction of two or more felonies. He

was sentenced on July 22, 2005, to 20 years in prison. After failing to file a

direct appeal, Mr. Mayes petitioned the Oklahoma courts for post-conviction

relief, arguing that his trial counsel was constitutionally ineffective. The state

courts rejected his petition on procedural grounds.

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Mr. Mayes then turned his efforts to federal court, filing a pro se federal

habeas petition under 28 U.S.C. § 2254 on October 13, 2009. While he admitted

that his petition was filed after the expiration of 28 U.S.C. § 2244’s one-year

limitations period, Mr. Mayes argued that state-created impediments statutorily

tolled the statute of limitations. See 28 U.S.C. § 2244(d)(1)(B). The district

court rejected that argument, dismissed the petition as time-barred, and denied

Mr. Mayes’s application for a certificate of appealability (“COA”). 

Mr. Mayes now renews before us his request for a COA in order to appeal

the district court’s order. We may issue a COA only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Where the district court dismisses a § 2254 petition on procedural

grounds, as it did in this case, we may issue a COA only if “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Based on our independent

review of the record in this case, and affording solicitous consideration to Mr.

Mayes’s pro se court filings, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1

(10th Cir. 2007), we agree with the district court that Mr. Mayes has not met this

threshold.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), motions to vacate a conviction under § 2254 must typically be made

within one year from the date on which the conviction became final. 28 U.S.C.

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§ 2244(d)(1)(A). Mr. Mayes’s judgment and conviction became final on

August 1, 2005, when the time period for seeking to withdraw his guilty plea

expired. Although the one-year limitations period is tolled during the pendency

of a prisoner’s state court motion for post-conviction relief, 28 U.S.C.

§ 2244(d)(2), Mr. Mayes didn’t file any such state court motion until May 14,

2009 — almost four years after his conviction became final. R. at 16. 

Accordingly, Mr. Mayes’s § 2254 petition was well outside the one-year

limitations period.

Mr. Mayes, for his part, does not dispute this conclusion. R. at 13. 

Instead, he argues that the State of Oklahoma prevented him from filing a timely

federal habeas petition and that we shouldn’t start the clock running until after

that “impediment” was removed. See 28 U.S.C. § 2244(d)(1)(B) (tolling the

statute of limitations when an “impediment to filing an application created by

State action in violation of the Constitution or laws of the United States . . .

prevented [prisoner] from filing” his petition). Specifically, he contends that

Oklahoma failed to provide him with “an adequate law library” and “physical

access to the prison law library” in violation of the U.S. Constitution. See

Opening Br. at 2A; id. at 3A.

The United States Constitution, however, does not guarantee prisoners “an

abstract, freestanding right to a law library or legal assistance,” Lewis v. Casey,

518 U.S. 343, 351 (1996), but rather a “right of access to the courts,” id. at 350. 

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Cf. Smith v. Shawnee Library Sys., 60 F.3d 317, 323 (7th Cir. 1995) (“There is no

‘right to browse’ [a prison library].”). In order to establish a violation of the

constitutional right of access, an inmate must demonstrate, among other things,

how the alleged shortcomings in the prison actually “hindered his efforts to

pursue a legal claim.” Lewis, 518 U.S. at 351. It follows that, to invoke

§ 2244(d)(1)(B)’s tolling provision — to show that an “impediment . . . created

by State action in violation of the Constitution . . . prevented” the filing of a

timely petition — an inmate must explain how the prison’s alleged constitutional

deficiencies hindered his efforts to pursue his claim within the prescribed statute

of limitations. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (denying

relief where petitioner “provided no specificity regarding the alleged lack of

access” and how it impacted his delay, explaining that “[i]t is not enough to say

that the [prison] facility lacked all relevant statutes and case law or that the

procedure to request specific materials was inadequate”); Garcia v. Hatch, 343

F. App’x. 316, 318 (10th Cir. 2009) (unpublished) (same); Weibley v. Kaiser, 50

F. App’x 399, 403 (10th Cir. 2002) (unpublished) (holding petitioner’s claim

“insufficient because he does not allege specific facts that demonstrate how his

alleged denial of [legal] materials impeded his ability to file a federal habeas

petition” in a timely manner); cf. United States v. Martinez, 303 F. App’x 590,

596 (10th Cir. 2008) (unpublished) (refusing equitable tolling because petitioner

“has not provided this Court with specific details regarding what restrictions

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1

 Mr. Mayes does argue for the first time on appeal that he was denied a

copy of AEDPA and thus couldn’t have known of the procedural rules he was

required to follow. However, we do not normally consider arguments raised for

the first time on appeal, and we accordingly decline to pass upon whether such a

(continued...)

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actually were placed on his access to legal materials or how such restrictions

hindered his ability to file his § 2255 motion” in a timely manner).

Mr. Mayes has not attempted such a showing. Instead, he merely

complains about the adequacy of the library facilities and arrangements, making

no effort to explain how these deficiencies hindered his ability to file a timely

post-conviction motion. Indeed, he admits in his filings that he could “submit a

written request for legal materials[,] and a prison guard would hand deliver the

legal materials to his cell.” R. at 13. And it appears that Mr. Mayes filed many

other post-conviction motions in the Oklahoma state courts during the period

when he was allegedly deprived of the resources necessary to access the judicial

system. See Mayes v. Province, 353 F. App’x 100, 105 (10th Cir. 2009)

(unpublished) (denying COA in response to same argument made by Mr. Mayes

when he sought to challenge another, apparently separate and distinct robbery

conviction). In these circumstances, although Mr. Mayes’s allegations might

suggest that additional resources could have been of greater assistance to him,

“there is no basis in the record before us to believe that [he] was incapable of

filing a timely habeas petition given the resources available.” Garcia, 343

F. App’x at 319.1

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1

(...continued)

denial would invoke the § 2244(d)(1)(B) exception. See Dockins v. Hines, 374

F.3d 935, 940 (10th Cir. 2004) (declining to consider challenge to prison library

made for first time on appeal).

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Because reasonable jurists could not debate that Mr. Mayes’s petition is

time-barred, the request for a COA is denied, and this appeal is dismissed. We

grant Mr. Mayes’s motion to proceed in forma pauperis. 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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