UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CALVIN WESLEY RILEY,

Petitioner-Appellant,

v.

TWYLA SNIDER; OKLAHOMA DEPARTMENT OF CORRECTIONS; STATE OF OKLAHOMA,

Respondents-Appellees.	No. 99-6339

(D.C. No. CIV-99-343-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, 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); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

Petitioner Calvin Wesley Riley, appearing pro se, seeks a certificate of appealability to challenge the district court's order dismissing his 28 U.S.C. § 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. Riley's objections, including the claim of actual innocence, the district court adopted the recommendation and denied the petition.

Mr. Riley's 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 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 of the statute of limitations on his petition for habeas corpus.2

Mr. Riley also asserts that we should grant equitable tolling based upon his claim of actual innocence, arguing that failure to do so would result in a fundamental miscarriage of justice. This court has implied that actual innocence may be grounds for equitable tolling of the § 2244(d)(1) limitations period. See id. "The claim of actual innocence itself is not a constitutional claim, but rather a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993).

If the evidence that Mr. Riley offers us as proof of his actual innocence were stronger, we would be more inclined to find that he satisfies the fundamental miscarriage of justice exception that excuses a petitioner's procedural default. See id. ("The fundamental miscarriage of justice exception is available 'only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'"). Mr. Riley's evidence consists of (1) a sworn affidavit signed by himself, in which he asserts his innocence, and (2) a sworn affidavit signed by Kim Riley, the owner of the house and his wife, asserting that no crime had occurred. Unlike scientific evidence or verifiable testimony, such self-serving and conclusory statements are insufficient to establish actual innocence, particularly in light of the fact that Mr. Riley admitted he committed the crime when he pled guilty.

Mr. Riley failed to convince us that we should grant him equitable tolling for the habeas corpus petition he filed almost nine months after his statute of limitations expired. There is no indication that he diligently pursued his petition or was prevented from doing so by an extraordinary obstacle. His claim of actual innocence does not satisfy the fundamental miscarriage of justice exception because it is based solely on conclusory statements by two obviously interested parties.

Accordingly, we DENY the certificate of appealability and DISMISS the petition.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge