* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### NOV 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

REX LAIN, Petitioner - Appellant, v. STATE OF WYOMING, Respondent - Appellee. No. 99-8064 (D.C. No. 98-CV-134) (District of Wyoming)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Pro se petitioner Rex Lain seeks a certificate of appealability as to the district court’s denial of his habeas petition. Th e district court dismissed his habeas petition as untimely pursuant to 28 U.S.C. § 2244(d), as well as finding his claims barred by the doctrine of procedural def ault. Lain was charged with first degree murder, based on the killing of John Harding. Lain and his friend Scott Young drove outof town one night with- 2 -

Harding. Young beat Harding senseless, and Lain he lped him hide the apparently lifeless body. When Harding began to stir, Young, according to Lain, stabbed him to death. Lain denies stabbing Harding himself , although the state was prepared to present Young’s testimony to the contrary. Against this backdrop, Lain pleaded guilty to voluntary manslaughter, all the while denying that he personally stabbed the victim. The state court acc epted Lain’s plea, finding that there was a factual basis to the charge of being an accessory before the fact to voluntary manslaughter. As an initial matter, we must determine whether Lai n has met the jurisdictional prerequisite of a timely notice of appeal. The district court issued a detailed order on May 20, 1999, granting Wyoming’s motion to dismiss Lain’s habeas petition. However, it did not enter a judgm ent on a separate document as required by Fed. R. Civ. P. 58. An order containin g reasoning and legal analysis does not generally constitute such a separate docum ent sufficient to trigger the appeal process. See Clough v. Rush , 959 F.2d 182, 185 (10th Cir. 1992). The May 20, 1999, order clearly contains reasoning and analysis. Therefore, although it would appear from the district court docket shee t that Lain did not file his notice of appeal until July 13, 1999, more than 30 days after the district court issued its order, see Fed. R. App. P. 4, we conclude that his notice of appeal is- 3 -

nevertheless timely because the May 20, 1999, orderwas not accompanied by a separate Rule 58 judgment so as to trigger the appe al process. For us to review Lain’s appeal, however, he must fi rst obtain a certificate of appealability, pursuant to 28 U.S.C. § 2253(c)(1 )(A), by making “a substantial showing of the denial of a constitutional right,” 2 8 U.S.C. § 2253(c)(2). The State argues that the calculation of the statutory limitation period never implicates the federal constitution and therefore cannot prese nt an issue justifying the grant of a certificate of appealability. We disagree. W e have held that “[t]here may be circumstances where the limitation period at least raises serious constitutional questions and possibly renders the habeas remedy in adequate and ineffective.” Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). To avoid suc h constitutional questions, we may subject the AEDPA limitations per iod, which is procedural and not jurisdictional, to equitable tolling in appropr iate circumstances. See id. One such circumstance is when the petitioner asserts “t hat a constitutional violation has resulted in the conviction of one who is actual ly innocent or incompetent.” Id. (citing Schlup v. Delo , 513 U.S. 298, 324-29 (1995); Cooper v. Oklahoma , 517 U.S. 348, 352-56 (1996)). Therefore, the quest ion of whether equitable tolling should apply to a facially untimely habeas petition may raise substantial constitutional questions compelling the grant of a certificate of appealability. Such, however, is not the case here.- 4 -

Lain does not contest the district court’s calculat ion of the AEDPA limitation period or its application of the statuto ry tolling provisions contained in 28 U.S.C. § 2244(d)(2). Rather, he simply argues t he district court erred in rejecting his substantive claims. Under the princi ple of liberal construction of pro se pleadings, we interpret this as a request to inv oke a fundamental miscarriage of justice argument for equitable tolling. See Schlup , 513 U.S. at 314-17; Miller , 141 F.3d at 978. Lain, however, does not maintain that he was actual ly innocent. He argues instead that his actions in driving out of town wit h Young and Harding and in hiding the body amounted at most to participation a s an accessory after the fact, rather than before the fact. Moreover, Lain prese nts no convincing argument that the district court was incorrect in finding Lain’s claim of constitutional error—that his guilty plea was involuntary because he lacked notice of the elements of the charge—to be both procedurally barr ed and without merit. See Henderson v. Morgan , 426 U.S. 637, 647 (1976). Therefore, Lain’s clai ms do not amount to “a substantial showing of the denial of aconstitutional right,” 28 U.S.C. § 2253(c)(2), and we deny his request for a certificate of appealability. Lain’s motion to proceed in forma pauperis is GRANTED ; the application for a certificate of appealability is DENIED ; this matter is DISMISSED

.- 5 -

The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge