* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### JUN 8 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOHNNY MALONE,

Petitioner-Appellant,

v. STATE OF OKLAHOMA,

Respondent-Appellee. Nos. 03-6175 & 03-6246 (D.C. No. 03-CV-96-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.
In appeal No. 03-6175, Johnny Malone, a state prisoner proceeding pro se, appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred by 28 U.S.C. § 2244(d). In appeal N o. 03-6246, Mr. Malone asserts that the district court abused its discreti on by denying his application for-2-

a certificate of appealability (COA), and by denyin g him leave to proceed in forma pauperis (IFP). This court previously granted Mr. Malone a COA as to all issues raised. Today, we grant Mr. Malone’s re newed application to proceed IFP on appeal. Appeal No. 03-6246 is therefore moot. See United States v. Hahn , 359 F.3d 1315, 1323 (10th Cir. 2004) (offering “s everal different locutions for determining when a case is moot”). Our jurisdiction arises under 28 U.S.C. § 1291. Be cause Mr. Malone is not entitled to equitable tolling, as set forth below, we affirm the district court’s judgment dismissing Mr. Malone’s habeas petition as untimely. Additionally, we deny Mr. Malone’s request for appointment of counsel. See Swazo v. Wyo. Dep’t of Corrs. State Penitentiary Warden , 23 F.3d 332, 333 (10th Cir. 1994) (“[T]here is no constitutional right to counsel beyond the ap peal of a criminal conviction, and . . . generally appointment of counsel in a § 2 254 proceeding is left to the court’s discretion . . . .”).

I. On January 29, 1998, Mr. Malone was convicted of fi rst degree murder in Oklahoma state court and sentenced to life imprison ment without parole. On March 30, 1999, the Oklahoma Court of Criminal Appe als affirmed Mr. Malone’s conviction. Mr. Malone did not file a petition forwrit of certiorari with the United States Supreme Court and, therefore, his con viction became final on1 In his federal habeas petition, Mr. Malone assertedthat he was convicted

due to the use of evidence obtained pursuant to an unlawful arrest, that he was denied effective assistance of counsel, that hearsay evidence was improperly admitted at trial, and that his sentence is excessi ve. -3- June 28, 1999, when his ninety-day period for filin g a petition for writ of certiorari expired. See Rhine v. Boone , 182 F.3d 1153, 1155 (10th Cir. 1999); Sup. Ct. R. 13. Under the Antiterrorism and Effect ive Death Penalty Act (AEDPA), Mr. Malone had one year from the date his conviction became final, until June 28, 2000, to file a federal habeas petit ion. 28 U.S.C. § 2244(d)(1)(A); United States v. Hurst , 322 F.3d 1256, 1260-61 (10th Cir. 2003) (holding that one-year limitation period in AEDPA should be calcu lated using anniversary date method even when intervening period includes leap y ear). Mr. Malone filed his federal habeas petition in Feb ruary 2003, more than two years after the AEDPA limitations period expired. 1 Mr. Malone’s petition was referred to a magistrate judge who ordered Mr. Malone to show cause why his petition should not be dismissed as untimely. Mr. Malone responded, asserting that he is illiterate, that he was denied access to law clerks, and that he “desires . . . a chance to prove his innocence.” R ., Doc. 12 at 1-2. He also requested the appointment of counsel. The magistrate judge recommended dismissing Mr. Mal one’s petition as untimely. In so doing, he observed that Mr. Malone did not seek post-conviction-4-

relief or other collateral review in state court, a nd that he was therefore not entitled to statutory tolling under 28 U.S.C. § 224 4(d)(2). The magistrate judge also found equitable tolling inapplicable to Mr. Ma lone’s circumstances. After the magistrate judge entered his report and recomme ndation, Mr. Malone objected, asserting he “just recently learned that . . . he could challenge his conviction in other ways,” that the law library was inadequate, that he should have been provided counsel, that he “was denied a f air trial,” and that due to his illiteracy and the denial of access to law clerks, “it was beyond his control to effectively fil[e] anything to prove his innocence, or to timely file documents in Court to fight his conviction.” R., Doc. 17 at 1-2

. The district court adopted and affirmed the magistr ate judge’s report and recommendation in its entirety, and dismissed Mr. M alone’s action as untimely. This appeal followed.

II. “In an appeal of the dismissal of a federal habeas corpus petition, we review a district court’s findings of fact for clea r error and its conclusions of law de novo .” Burger v. Scott , 317 F.3d 1133, 1137 (10th Cir. 2003). The distri ct court’s denial of a habeas petition based on § 2244(d), we review de novo

. Id. at 1137-38. “[W]e review the district court’s dec ision on equitable tolling of the limitation period[, however,] for an abuse of discretion.” Id. at 1138.2 We decline to consider the various issues raised fo r the first time in

Mr. Malone’s reply brief; for example, whether he w as competent to stand trial. Aplt. Reply Br. at 11-13. See Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordinarily review issues rais ed for the first time in a reply brief.”). -5- Because Mr. Malone is pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). At issue is whether the district court erred in dis missing Mr. Malone’s habeas petition as time-barred; specifically, wheth er the district court abused its discretion in finding equitable tolling inapplicabl e to Mr. Malone’s habeas petition. 2 Equitable tolling is appropriate only “when an in mate diligently pursues his claims and demonstrates that the failure to timely file was c aused by extraordinary circumstances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (emphasis added). [W]e have limited equitable tolling of the one-yearlimitations period to “rare and exceptional” circumstances. Therefore , [e]quitable tolling would be appropriate, for example, when a prisoner is actual ly innocent, when an adversary’s conduct–or other uncontrollable circums tances–prevents a prisoner from timely filing, or when a prisoner actively pur sues judicial remedies but files a defective pleading during the statutory period. Simple excusable neglect is not sufficient. Burger , 317 F.3d at 1141 (citation omitted). Mr. Malone claims that the AEDPA’s one-year limitat ion period should be tolled due to his ignorance of the law, the absence of law-clerk-assistance, and his illiteracy. None of these reasons justifies tolling the one-year period. See Marsh ,-6-

223 F.3d at 1220 (“[I]gnorance of the law, even foran incarcerated pro se petitioner, generally does not excuse prompt filing .” (quotation omitted)); id. (holding assistance petitioner received from an in mate law clerk did not relieve him of personal responsibility to file with in the AEDPA’s one-year period); Turner v. Johnson , 177 F.3d 390, 392 (5th Cir. 1999) (holding illite racy does not merit equitable tolling). Accordingly, we conclude that the district court did not abuse its discretion in finding equitable t olling inapplicable to Mr. Malone’s claims of ignorance, lack of assistanc e, and illiteracy. Mr. Malone also argues that the one-year period sho uld be tolled because of the rare, exceptional, and extraordinary circumstan ces he has suffered. Despite Mr. Malone’s use of the relevant legal buzz words, he fails to supply the factual background necessary to support his conclusory alle gations. Indeed, he provides no specificity regarding the circumstances to whichhe was allegedly subject; instead, he alludes to several of the grounds we have already considered and rejected: his ignorance of the law and his illiter acy. Moreover, Mr. Malone apparently concedes a lack of diligence on his part , admitting that there was “a lapse of time . . . from Aug. 30, 2000, [when a fellow inmate was trying to assist Mr. Malone], until . . . [t]he filing of his 28 [U.S.C.] § 2254 [petition], on Feb. 13, 2003.” Aplt. Br. No. 03-6175, at 28.-7-

Finally, Mr. Malone claims he is actually innocent and that his innocence should toll the AEDPA’s one-year period. In order to demonstrate actual innocence in a so-ca lled collateral proceeding, a petitioner must present [to the distr ict court] “new reliable evidence that was not presented at trial” and “show that it is more likely than not that no reasonable juror wouldhave found [petitioner] guilty beyond a reasonable doubt.” Lucidore v. N.Y. State Div. of Parole , 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo , 513 U.S. 298, 299, 327-28 (1995)). To support hi s innocence claim, Mr. Malone offers as “new reliable evidence” his own sworn affidavit dated September 3, 2003. Aplt. Br. No. 03-6175, at15, 34 & Ex. G at 1-4. But because Mr. Malone’s self-serving affidavit was notbefore the district court, we decline to consider it. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992). Having reviewed the briefs, the record, and the app licable law, we conclude that the district court correctly dismissed Mr. Mal one’s habeas petition as untimely. We therefore AFFIRM the district court’s judgment entered on June 4, 2003, in appeal No. 03-6175, and we dismiss appeal No. 03-6246 as moot.

Entered for the Court

Wade Brorby Senior Circuit Judge