* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 9 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN CHARLES CHRISTENSEN, Petitioner - Appellant, vs. REGINALD HINES; DEBBIE MAHAFFEY; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 00-6160 (D.C. No. 98-CV-1444) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **

Petitioner Stephen Charles Christensen, an inmate appearing pro se, seeks a certificate of appealability (“COA”) allowing him t o appeal the district court’s order denying his habeas petition, 28 U.S.C. § 2254 . Because Mr. Christensen1 Petitioner and Linda Christensen are now divorced. - 2 - has failed to make “a substantial showing of the de nial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny a CO A and dismiss the appeal. In 1995, Mr. Christensen and his wife, Linda Christ ensen 1 , were convicted in Oklahoma state court of several drug-related charges. Mr. Christensen was convicted of conspiracy to traffic a controlled dan gerous substance, trafficking a controlled dangerous substance, maintaining a motel room where a controlled dangerous substance is kept, possession of a contro lled dangerous substance without a tax stamp, possession of drug paraphernal ia, possession of a firearm while committing a felony, and possession of a controlled dangerous substance within 1000 feet of a school. R. Doc. 1 Ex. C (Jud gment and Sentence). Mr. Christensen was sentenced to 30 years’ imprisonmentand a $16,000 fine. Id. The Oklahoma Court of Criminal Appeals affirmed his conviction on direct appeal. Christensen v. State , No. F-95-894 (Okla. Crim. App. Dec. 6, 1996) (unpublished). Mr. Christensen first sought state post-conviction relief on April 4, 1997, in the Oklahoma County District Court, alleging five c onstitutional violations. The state district court denied his petition on May 2, 1997, holding that Petitioner had waived four of the five issues by not raising them on direct appeal and that the record did not support the remaining claim. Christ ensen v. State , No. CF-94-60832Mr. Christensen’s habeas petition was file-stampedon October 16, 1998.

However, as the magistrate judge explained in his R eport and Recommendation, R. Doc. 27 at 4 n.7, the petition is deemed filed w hen the Mr. Christensen deposited it in the prison mail system. See Hoggro v. Boone , 150 F.3d 1223, 1226 n.3 (10th Cir. 1998). We agree with the magis trate judge’s assumption that the petition was placed in the prison mail system o n the day Mr. Christensen signed it, October 6, 1998. - 3 - (Okla. Dist. Ct. May 2, 1997) (unpublished). On Ju ne 4, 1997, Mr. Christensen appealed the state district court’s denial of his application for post-conviction relief, and on July 7, 1997, the OCCA dismissed Mr. Christensen’s appeal as untimely. Christensen v. State , No. PC 97-792 (Okla. Crim. App. July 7, 1997) (unpublished). Mr. Christensen filed a second post-conviction appl ication in the state district court on August 20, 1997, requesting an ap peal out of time to contest the state district court’s earlier findings. The state district court denied this request on September 15, 1997, Christensen v. State , No. CF-94-6083 (Okla. Dist. Ct. Sept. 15, 1997) (unpublished), and the OCCA affirme d this denial on October 28, 1997. Christensen v. State , No. PC 97-1395 (Okla. Crim. App. Oct. 28, 1997) (unpublished). Mr. Christensen executed his federa l habeas petition on October 6, 1998. 2R. Doc. 1. In his federal habeas petition, Mr. Christensen rai sed five alleged constitutional violations, including a claim of “ac tual innocence.” R. Doc. 1 at 10A. The magistrate judge, in his report and recom mendation, found all the- 4 -

claims to be time-barred as Mr. Christensen had fai led to file his federal habeas petition within the one-year statute of limitations , 28 U.S.C. § 2244(d)(1)(A). See R. Doc. 27 at 7. The magistrate judge also conclud ed that Mr. Christensen’s claim of actual innocence did not qualify his petit ion for equitable tolling, as Mr. Christensen failed to present any evidence in suppo rt of his claim. Id. at 12, 15. The district court adopted the magistrate judge’s r eport and recommendation and dismissed the petition as time-barred, R. Doc. 33, and denied a COA. Id. Doc. 43. Mr. Christensen raises two claims before this court : (1) that “[t]he District court was in error for holding/not permitting the s tatute of limitations to be tolled for actual innocence claim”; and (2) that “[t]he di strict court was in error for not permitting petitioner to supplement his claims and the record to show innocence.” Aplt. Br. at 16. We have reviewed the district court’s judgment in l ight of Mr. Christensen’s submissions to this court and the rec ord on appeal. We agree with the magistrate judge’s recommendation and the distr ict court’s order that Mr. Christensen’s petition be dismissed as time-barred. See R. Doc. 27 at 6-10, Doc. 33. Mr. Christensen’s conviction became final whenhis time for seeking certiorari in the United States Supreme Court expir ed on March 6, 1997. See Rhine v. Boone , 182 F.3d 1153, 1155 (10th Cir. 1999), cert . denied , 528 U.S.- 5 -

1084 (2000). Under 28 U.S.C. § 2244(d)(1)(A), Mr. Christensen had one year, until March 6, 1998, to file his federal habeas pet ition. Mr. Christensen did not file his federal habeas petition until October 6, 1 998. Even tolling the limitations period for the time Mr. Christensen’s first application for state post-conviction relief was pending, 28 U.S.C. § 2244(d)(2), the statutory 30-day period Mr. Christensen had to appeal the denial of that first application, Gibson v. Klinger , 232 F.3d 799, 804 & n.1 (10th Cir. 2000), and the t ime Mr. Christensen sought leave to seek an appeal out of time, Smith v. State , 611 P.2d 276 (Okla. Crim. App. 1980), Mr. Christensen had approximately an ad ditional 129 days, or until July 13, 1998, to timely file his habeas petition. Mr. Christensen did not file his habeas petition until October 6, 1998, almost three months late. Mr. Christensen’s mere assertion of an actual innoc ence claim is not sufficient grounds for equitable tolling. In orderto qualify for equitable tolling on an actual innocence claim, the petitioner must c ome forward with sufficient evidence to undermine the court’s confidence in the outcome of his criminal proceedings. See Lucidore v. New York State Division of Parole , 209 F.3d 107, 114 (2d Cir.) (“In order to demonstrate actual inno cence in a so-called collateral proceeding, a petitioner must present new reliable evidence that was not presented at trial and show that it is more likely than not t hat no reasonable juror would have found [him] guilty beyond a reasonable doubt.” ) (internal quotations- 6 -

omitted, alteration in original), cert . denied , 121 S. Ct. 175 (2000); Felder v. Johnson , 204 F.3d 168, 171 (5th Cir.) (petitioner’s unsupp orted actual innocence claim does not constitute grounds for equitable tol ling “given that many prisoners maintain they are innocent”), cert . denied, 121 S. Ct. 622 (2000). Here, Mr. Christensen has made no showing of any such evidenc e to support his actual innocence claim. In addition, Mr. Christensen has failed to provide any valid explanation for his delay in filing, thereby failin g to diligently pursue his claims as equitable tolling requires. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). We DENY a COA, DENY leave to proceed in forma paupe ris, and DISMISS this appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge