F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      March 13, 2007
                   UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                         No. 06-2328
                                              (D.C. Nos. CIV-06-09-JP/RLP and
 v.
                                                      CR -01-1335 JP)
                                                          (D .N.M .)
 LA M AR A NTW AUN W ILLIAM S,

       Defendant - Appellant.



                     OR DER DENYING A CERTIFICATE
                           OF APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Lamar W illiams, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255

habeas petition. For substantially the same reasons set forth by the district court,

we D EN Y a COA and DISM ISS.

      W illiams was convicted of possession with intent to distribute over 50

grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and

sentenced to 262 months’ imprisonment on February 14, 2003. This court

affirmed his conviction on direct appeal, United States v. W illiams, 

(2004), and the Supreme Court denied his petition for certiorari on October
4, 2004. He filed his § 2255 petition on January 4, 2006. The district court

denied his petition as untimely and denied his subsequent request for a COA.

W illiam s now seeks a COA from this court. 1

      W illiams concedes that his conviction became final on October 4, 2004.

Accordingly, he had until O ctober 4, 2005 to file a habeas petition. See 28

U.S.C. § 2255 (providing a one-year limitations period from the date a conviction

becomes final). Although W illiams’ petition was filed three months after that

date, he urges the court to equitably toll the limitations period.

      Equitable tolling “is only available w hen an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” M arsh v. Soares, 

, 1220 (10th Cir. 2000). W illiams claims that he was denied access to legal

materials while his prison was in “lockdown” between September 17, 2005 and

October 3, 2005. If we were to toll the limitations period for the duration of this

lockdow n, Williams’ application would still be more than two months late. He

also asserts that prison officials seized his legal documents during the lockdown.



      1
        A petitioner may not appeal the denial of habeas relief under § 2255
without a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). This requires W illiams to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 

,
484 (2000) (quotations omitted).

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Such confiscation may justify tolling during the period he was deprived access to

the documents, but W illiams never claims he was diligent in attempting to

retrieve the documents. Finally, W illiams argues that equitable tolling is

appropriate because of the difficulties he had in obtaining his trial transcripts.

However, none of the delays he cites constitute “extraordinary circumstances

beyond his control.” 

illiams’ request for a COA is DENIED and his appeal is

DISM ISSED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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