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

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,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 No. 03-6246, Mr. Malone

asserts that the district court abused its discretion by denying his application for
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a certificate of appealability (COA), and by denying 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 renewed 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 “several different locutions

for determining when a case is moot”).

Our jurisdiction arises under 28 U.S.C. § 1291. Because 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 appeal of a criminal conviction,

and . . . generally appointment of counsel in a § 2254 proceeding is left to the

court’s discretion . . . .”). 

I.

On January 29, 1998, Mr. Malone was convicted of first degree murder in

Oklahoma state court and sentenced to life imprisonment without parole. On

March 30, 1999, the Oklahoma Court of Criminal Appeals affirmed Mr. Malone’s

conviction. Mr. Malone did not file a petition for writ of certiorari with the

United States Supreme Court and, therefore, his conviction became final on
1

In his federal habeas petition, Mr. Malone asserted that 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 excessive. 

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June 28, 1999, when his ninety-day period for filing 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 Effective 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 petition. 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 calculated using anniversary date

method even when intervening period includes leap year).

Mr. Malone filed his federal habeas petition in February 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. Malone’s petition as

untimely. In so doing, he observed that Mr. Malone did not seek post-conviction
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relief or other collateral review in state court, and that he was therefore not

entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). The magistrate judge

also found equitable tolling inapplicable to Mr. Malone’s circumstances. After

the magistrate judge entered his report and recommendation, 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 fair 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 magistrate judge’s report and

recommendation in its entirety, and dismissed Mr. Malone’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 clear error and its conclusions of law

de novo .” Burger v. Scott , 317 F.3d 1133, 1137 (10th Cir. 2003). The district

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 decision 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 for the first time in

Mr. Malone’s reply brief; for example, whether he was 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 raised for the first time in a reply

brief.”).

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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 dismissing Mr. Malone’s

habeas petition as time-barred; specifically, whether the district court abused its

discretion in finding equitable tolling inapplicable to Mr. Malone’s habeas

petition. 2 Equitable tolling is appropriate only “when an inmate diligently pursues

his claims and demonstrates that the failure to timely file was caused 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-year limitations period

to “rare and exceptional” circumstances. Therefore, [e]quitable tolling would be

appropriate, for example, when a prisoner is actually innocent, when an

adversary’s conduct–or other uncontrollable circumstances–prevents a prisoner

from timely filing, or when a prisoner actively pursues 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 limitation 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 ,
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223 F.3d at 1220 (“[I]gnorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing.” (quotation omitted));

id. (holding assistance petitioner received from an inmate law clerk did not

relieve him of personal responsibility to file within the AEDPA’s one-year

period); Turner v. Johnson , 177 F.3d 390, 392 (5th Cir. 1999) (holding illiteracy

does not merit equitable tolling). Accordingly, we conclude that the district court

did not abuse its discretion in finding equitable tolling inapplicable to

Mr. Malone’s claims of ignorance, lack of assistance, and illiteracy.

Mr. Malone also argues that the one-year period should be tolled because of

the rare, exceptional, and extraordinary circumstances 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 allegations. Indeed, he provides

no specificity regarding the circumstances to which he was allegedly subject;

instead, he alludes to several of the grounds we have already considered and

rejected: his ignorance of the law and his illiteracy. 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.
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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-called collateral

proceeding, a petitioner must present [to the district court] “new

reliable evidence that was not presented at trial” and “show that it is

more likely than not that no reasonable juror would have 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 his innocence

claim, Mr. Malone offers as “new reliable evidence” his own sworn affidavit

dated September 3, 2003. Aplt. Br. No. 03-6175, at 15, 34 & Ex. G at 1-4. But

because Mr. Malone’s self-serving affidavit was not before 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 applicable law, we conclude

that the district court correctly dismissed Mr. Malone’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