Riley v. Snider, 10th Cir. (2000)
Riley v. Snider, 10th Cir. (2000)
Riley v. Snider, 10th Cir. (2000)
MAR 1 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
No. 99-6339
(D.C. No. CIV-99-343-C)
(W.D. Okla.)
Respondents-Appellees.
2254 petition as untimely. Because Mr. Riley has not made a substantial showing
of the denial of a constitutional right, see 28 U.S.C. 2253(c), we deny the
request and dismiss his appeal.
Mr. Riley pled guilty on May 19, 1997, to first degree burglary in state
court and was sentenced to ten years imprisonment, three of which were
suspended. He applied for state post-conviction relief, which was denied, and
then appealed to the Oklahoma Court of Criminal Appeals (OCCA), which
rejected the appeal as untimely. Mr. Riley filed a habeas corpus petition in the
district court alleging that he was factually innocent of the crime charged, his
guilty plea had been defective, and his trial counsel was ineffective. The matter
was referred to a magistrate judge, who recommended the petition be denied as
untimely filed under 28 U.S.C. 2244(d). After consideration of Mr. Rileys
objections, including the claim of actual innocence, the district court adopted the
recommendation and denied the petition.
Mr. Rileys conviction became final on May 29, 1997, for purpose of the
one-year statute of limitations contained in 2244(d)(1). The time Mr. Riley
spent pursuing state post-conviction relief tolled the running of the limitations
period until December 22, 1997, when the state district court denied the
application. See 28 U.S.C. 2244(d)(2). His subsequent appeal to the OCCA did
not toll the limitations period, because it was untimely filed. See Hoggro v.
Boone, 150 F.3d 1223, 1227 n.4 (10th Cir. 1998). Consequently, Mr. Riley had
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until approximately June 24, 1998 to file his petition for habeas relief. He did not
file until March 15, 1999.
Mr. Riley argues the limitations period should be equitably tolled, based on
the inadequacy of legal materials in the prison library, his lack of legal assistance,
and his ignorance of the law. 1 Section 2244(d) is not jurisdictional, and as a
limitation may be subject to equitable tolling. Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998). However, inmates must diligently pursue their claims in order
to avail themselves of this tolling. See id.; see also Davis v. Johnson, 158 F.3d
806, 811 (5th Cir.1998) (equitable tolling appropriate only "in rare and
exceptional circumstances"), cert. denied, 119 S. Ct. 1474 (1999); Miller v. New
Jersey State Dept. of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (equitable
tolling applies only where prisoner has diligently pursued claims, but has in some
"extraordinary way" been prevented from asserting his rights). Mr. Riley presents
us with no evidence that he either diligently pursued his claims or was prevented
in some extraordinary way from doing so. Rather, it appears to this court that, as
in Miller, 141 F.3d at 978, he was simply unaware that the months he spent
pursuing his time-barred appeal before the OCCA were not tolled for the purposes
Mr. Riley claims that requests to transfer to satellite law libraries for
research are rarely granted, and that inmate legal research assistance, while not
prohibited is not encouraged. He does not, however, argue that he ever made a
request to use the satellite library or assert that he sought inmate legal research
assistance but was prevented from utilizing it.
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