Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
MAR 6 2001
PATRICK FISHER
Clerk
TEDDY WAYNE WEST,

Petitioner-Appellant,
v.
No. 00-7102
(E.D. Oklahoma)
STEVE KAISER,
(D.C. No. 99-CV-578-B)
Respondent-Appellee.
ORDER AND JUDGMENT
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the
determination of this appeal.
See Fed. R. App. P. 34(a)(2)(c);10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument

Teddy W. West, a state prisoner proceeding pro se, appeals the district
courts dismissal of his habeas petition filed pursuant to 28 U.S.C. 2254. We
agree with the district courts finding that Mr. Wests petition is untimely and that
This order and judgment is not binding precedent, except under the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.
*
he has not presented claims for which relief should be granted. Accordingly, we
decline to issue a certificate of appealability and dismiss the appeal.
Mr. West was convicted of escape from a county jail, robbery with a
dangerous weapon, assisting a prisoner to escape, and robbery by force or fear. In
his habeas petition, Mr. West alleged that he (1) received ineffective assistance of
trial and appellate counsel and (2) was deprived of due process and equal
protection through his enhanced sentence. The district dismissed Mr. Wests
petition for habeas corpus as untimely under the one-year limitation period in 28
U.S.C. 2244(d), and subsequently denied his application for a certificate of
appealability. Before us is a renewed application for a certificate of appealability
and a motion to proceed in forma pauperis.
In reviewing the denial of a habeas corpus petition, we review the district
courts factual findings under a clearly erroneous standard, and its legal
conclusions de novo, keeping in mind that our review of the state courts
proceedings is quite limited.
Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.
1999), cert. denied , 528 U.S. 1120 (2000). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Mr. Wests conviction became final on
December 15, 1997, which marked the conclusion of the ninety-day period for
filing a petition for certiorari to the Supreme Court.
See Locke v. Saffle , 237
F.3d 1264, 1271-72 (10th Cir. 2001) (stating that the one-year limitation period
-2-
begins to run when the time for filing a certiorari petition expires and the
period of direct review in 2244(d)(1)(A) includes the period within which a
petitioner can file a petition for a writ of certiorari from the United States
Supreme Court, whether or not the petitioner actually files such a petition.)
(internal quotation marks and citations omitted). As a result, on December 15,
1997, the one-year limitation period for filing an application for a writ of habeas
corpus began to run, see 2244(d)(1), subject to the tolling provision in
2244(d)(2).
Because Mr. West filed an application for post-conviction relief in state
court on September 8, 1998, the limitation period was suspended for 256 days
until the Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief on May 21, 1999.
See 28 U.S.C. 2244(d)(2). Mr. West
subsequently filed his habeas petition in federal court on October 28, 1999, 61
days after the one-year time limit expired. The district court issued an order
determining Mr. West untimely filed his petition and that no equitable tolling was
warranted.
On appeal, Mr. West asks us to reconsider his claim that equitable tolling is
warranted. We have held that AEDPAs one-year statute of limitations is subject
to equitable tolling but only in rare and exceptional circumstances.
Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (quoting
-3-
Gibson v.
Davis v. Johnson , 158 F.3d
806, 811 (5th Cir. 1998)). Examples of such circumstances are actual innocence
or when uncontrollable circumstances prevent an inmate from timely filing.
Simple excusable neglect is not sufficient.
Id. , 232 F.3d at 811.
In support of equitable tolling, Mr. West argues that he was unable to file
his petition because of the inadequate legal facilities and legal assistance
available in the private correctional facility in which he is incarcerated. We have
stated that [a] state may elect to provide legal assistance to inmates in lieu of
maintaining an adequate prison law library.
Petrick v. Maynard , 11 F.3d 991,
995 (10th Cir. 1993). Legal assistance does not necessarily mean assistance from
a lawyer; rather, it can mean adequate assistance from persons trained in the
law, Bounds v Smith , 430 U.S. 817, 828 (1977), such as law clerks, paralegals,
volunteer attorneys, or staff attorneys.
Mr. West contends that one contract attorney assists approximately 2,500
inmates at three separate Corrections Corporations of America-owned correctional
facilities. In further support of his argument that the limitation period should be
equitably tolled, he states that he had to wait eight to twelve weeks for assistance
from the contract attorney and that he had to wait approximately sixty days for
transcripts from the court reporter.
We agree with the conclusions of the district court that Mr. Wests petitions
were untimely and that Mr. Wests pleadings, which we construe liberally
-4-
pursuant to Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), suggest
no basis for equitable tolling. Specifically, he has not demonstrated how the
unavailability of access to counsel or materials delayed his application, which
merely appended his state post-conviction filing.
See Miller v. Marr , 141 F.3d
976, 978 (10th Cir. 1998) (rejecting equitable tolling in part because of similarity
of claims raised by petitioner on direct review and in state post-conviction
motion). As such, Mr. West has not demonstrated any extraordinary way that he
has been prevented from asserting his rights.
See id. (suggesting equitable tolling
of limitation period when delay is encountered with circumstances over which

inmate had no control and inmate has diligently pursued his claims). In addition,
Mr. West provides us with little specificity regarding the steps he took to
diligently pursue his federal claims so as to justify equitable tolling of the
limitation period.
See id.
We have thoroughly reviewed the record on appeal, Mr. Wests brief, and
the district courts order. Accordingly, we GRANT his motion to proceed in
forma pauperis, DENY his request for a certificate of appealability for
substantially the same reasons set forth in the district courts order, and DISMISS
the appeal.
Entered for the Court,
-5-
Robert H. Henry
Circuit Judge
-6-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

TEDDY WAYNE WEST,

(D.C. No. 99-CV-578-B)

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

See Fed. R. App. P. 34(a)(2)(c);10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument

Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.

See Locke v. Saffle , 237

See 28 U.S.C. 2244(d)(2). Mr. West

Davis v. Johnson , 158 F.3d

Id. , 232 F.3d at 811.

Petrick v. Maynard , 11 F.3d 991,

See Miller v. Marr , 141 F.3d

See id. (suggesting equitable tolling

of limitation period when delay is encountered with circumstances over which

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