* This order and judgment is not binding precedent, e xcept under the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

### DEC 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL DON ELLIS,

Petitioner - Appellant, No. 98-6450

v. (W.D. Oklahoma) TOM C. MARTIN, Warden, and DREW EDMONDSON,

Respondents - Appellees. (D.C. No. CV-98-625-L)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , 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(G). T he case is therefore ordered submitted without oral argument.-2-

Michael Don Ellis applies for a certificate of appealability to appe al the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus as time barred under the one-year statute of limitations provided in 28 U.S.C. § 2244(d). On appeal, Ellis argues that the district court should have equitably tolled the one-year statute of limitation s, and alternatively, that the statute of limitations for federal habeas petitions (1) violates the Suspension Clause of the United States Constitution, (2) denie s him substantive due process, and (3) denies him the rights provided under the Ok lahoma Post Conviction Relief Act. We deny a certificate of appealability , and dismiss the appeal.

BACKGROUND In 1986, Ellis was convicted of first-degree murderin Oklahoma state court and sentenced to life imprisonment. On June 29, 19 90, the Oklahoma Court of Criminal Appeals affirmed both his conviction and s entence. Nearly seven years later, on April 23, 1997, Ellis sought post-convict ion relief in the District Court of Oklahoma County, which denied his request on May5, 1997. Ellis elected not to appeal the denial, later stating that “the outco me was obvious.” Petitioner’s Amd. Brief to Dist. Ct. at 2. On May 5, 1998, one year after his state postconviction request was denied, Ellis filed this fed eral habeas petition.-3- DISCUSSION On April 24, 1996, Congress amended what had been “ the long-standing prior practice in habeas corpus litigation that gav e a [state] prisoner virtually unlimited amounts of time to file a habeas petition in federal court” by passing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Hoggro v.
Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). The AEDPA established a oneyear limitations period in which prisoners must fil e their federal habeas petitions.
See 28 U.S.C. § 2244(d)(1). By statute, the one-year period of limitations gene rally begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such revi ew.” 28 U.S.C. § 2244(d)(1)(A). For prisoners whose convictions b ecame final prior to the AEDPA’s effective date, April 24, 1996, we have det ermined that the limitations period commences on April 24, 1996, and expires one year later. See Hoggro , 150 F.3d at 1225-26. Under the AEDPA, the one-yearlimitations period is tolled while the defendant pursues state post-conviction relief, see 28 U.S.C. § 2244(d)(2), and we have held that the one-year li mitations period “may be subject to equitable tolling” as well. Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied , 119 S. Ct. 210 (1998).1 Ellis appears to make this argument in his Pro Se M otion to Supplement

the Record. Because we construe pro se pleadings l iberally, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), we address his content ion. -4- A review of the record in this case demonstrates th at Ellis’s federal habeas petition was untimely. Because Ellis’s conviction became final prior to the effective date of the AEDPA, his one-year period of limitations for filing a federal habeas petition began running on April 24, 1996. On the final day of the limitations period, April 23, 1997, Ellis filed an application for state postconviction relief, tolling the limitations period f or the twelve days while his application was pending in state court. When his application for post-conviction relief was denied on May 5, the limitations period briefly resumed running until it expired the following day, May 6, 1997. Ellis’s fe deral habeas petition, filed one year later on May 5, 1998, was thus untimely.

A. Ellis argues that the statute of limitations shouldbe equitably tolled to allow him to proceed on the merits of his habeas petition. 1 We held in Miller v.
Marr that the one-year statute of limitations “may be s ubject to equitable tolling” when the inmate has diligently pursued his claim. See Miller v. Marr , 141 F.3d at 978; see also Davis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998) (AEDPA's one-year limitation period will be equitably tolled only “in rare and exceptional-5-

circumstances”), cert. denied , 119 S. Ct. 1474 (1999); Miller v. New Jersey State Dept. of Corrections , 145 F.3d 616, 618-19 (3d Cir. 1998) (equitable to lling applies only where prisoner has diligently pursued claims and has in some “extraordinary way” been prevented from asserting h is rights). After his direct appeal failed in 1990, Ellis waited nearly seven ye ars until the last day of the limitations period under the AEDPA before filing hi s state court request for postconviction relief. After that request was denied, he waited an additional year before filing his federal habeas petition. Ellis argued below (and appears to argue here) thatthe delay in filing his petition was attributable to his reliance on his attorney’s good faith miscalculation of the statute of limitations. To the extent this may be construed as a claim of ineffective assistance of counsel it fails since there is no constitutional right to counsel in collateral proceedings. See Pennsylvania v. Finley , 481 U.S. 551, 555 (1987). Further, neither Ellis’s misunderstanding nor his attorney’s mistake excuses the delay. See Miller v. Marr , 141 F.3d at 978 (petitioner’s lack of awareness of limitation period insufficient basis for equitable tolling); Taliani v. Chrans , 189 F.3d 597 (7th Cir. 1999) (lawyer's mistake incalculating habeas limitations period not a valid basis for equitable tolling). In short, it was not the one-year limitation period that prevented Ellis fro m obtaining federal review of-6-

the legality of his conviction, but rather his own lack of diligence. Thus, the district court properly refused to equitably toll t he statute of limitations.

B. Ellis also contends that the AEDPA’s imposition of a one-year limitations period for filing a petition for a writ of habeas c orpus is unconstitutional either because the limitations period violates the Suspens ion Clause, U.S. Const. art. I, § 9, cl. 2, or is a violation of substantive due pr ocess. We reject these arguments. The AEDPA, including its limitations period, is constitutional. Cf . Felker v. Turpin , 518 U.S. 651, 664 (1996); Miller v. Marr , 141 F.3d at 978 . In particular, the limitations period (which is not jurisdictional but is subject to equitable tolling) does not prohibit habeas petitions but simply requires that they be filed within a reasonable time. The one-year limitations period has the rational purpose of encouraging the timely and efficient dispositionof habeas claims. Thus, Ellis’s constitutional claims fail. Ellis also contends that the limitations period in the AEDPA interferes with the Oklahoma Post Conviction Relief Act. Specifica lly, he argues that the Oklahoma law has no limitations period and that fed eral law now, as a practical matter, imposes one. To the extent this argument i s directed to the adequacy of state law, it is inappropriate for federal habeas review. See Estelle v. McGuire ,-7-

502 U.S. 62, 67 (1991). To the extent it may be in terpreted as a constitutional argument, we have disposed of that contention above

.

CONCLUSION For the reasons stated, we conclude that the distri ct court did not err in applying the one-year time limitation to bar Ellis’ s petition. Accordingly, because Ellis has failed to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his application for a certificate of appealability and DISMISS the appeal. Ellis’s pro se motion to supplement the record is GRANTED in part; his pro se requests for an evidentiary hearing and for court-appointed new counsel are DENIED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge