F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 8 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHNNY MALONE,
Petitioner-Appellant,
Nos. 03-6175 & 03-6246
v. (D.C. No. 03-CV-96-C)
(W.D. Okla.)
STATE OF OKLAHOMA,
Respondent-Appellee.
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
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
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
-2-
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
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.
-3-
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.
-4-
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 ,
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.”).
-5-
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.
-6-
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
-7-