F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
OMAR DENTON WHITE,
Petitioner-Appellant,
v. No. 98-6289
(D.C. No. CIV-98-159-R)
RON WARD, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, 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. 34.1.9. Therefore, the
case is ordered submitted without oral argument.
Omar Denton White, an Oklahoma state prisoner appearing pro se, seeks a
certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.
*
This order and judgment is not binding precedent, except under the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.
§ 2254 habeas petition. We deny a certificate of appealability and dismiss the
appeal.
In 1985, White was convicted of second-degree burglary after conviction of
two or more felonies and was sentenced to eighty-five years’ imprisonment. His
conviction and sentence were affirmed on direct appeal in White v. State, 762
P.2d 967 (Okla. Crim. App. 1988). Although no documentation appears in the
record, White alleges he sought and was denied post-conviction relief in state
district court in 1989, but did not appeal because he was denied access to a law
library. He filed a second request for post-conviction relief in state district court
on July 9, 1991, which was denied on September 19, 1991, and the denial was
affirmed on appeal on February 19, 1992.
White filed a habeas petition in federal district court on April 12, 1995.
The court dismissed the petition without prejudice after concluding White had not
exhausted state court remedies when he failed to appeal dismissal of his first
petition for post-conviction relief. In an apparent attempt to exhaust state court
remedies, White filed a third request for post-conviction relief in state court on
September 13, 1996, 1
which was denied on December 16, 1996. White did not
1
White alleges he filed a motion “for an appeal out of time” in state
district court on October 17, 1995, which was ultimately treated as an application
for post-conviction relief. Although the record on appeal does not contain a copy
of the motion or the state court’s order or docket sheet acknowledging the motion,
(continued...)
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perfect an appeal from that denial until January 21, 1997, and the Oklahoma
Court of Criminal Appeals declined to exercise jurisdiction over the appeal.
White’s objection and request for reconsideration were denied.
White filed the instant habeas petition on January 30, 1998. Respondent
moved to dismiss on statute of limitations grounds. The magistrate judge
recommended dismissal because the petition was not filed within the one-year
statute of limitations set forth in 28 U.S.C. § 2244(d). White filed objections, but
the district court adopted the magistrate’s report and dismissed the petition as
untimely.
To obtain a certificate of appealability, White must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
standard is met by a showing that the issues raised “are debatable among jurists,
or that a court could resolve the issues differently, or that the questions deserve
further proceedings.” United States v. Sistrunk , 111 F.3d 91 (10th Cir. 1997).
Congress amended “the long-standing prior practice in habeas corpus
litigation that gave a prisoner virtually unlimited amounts of time to file a habeas
petition in federal court,” on April 24, 1996, and “established a one-year period of
limitations for habeas petitions.” Hoggro v. Boone , 150 F.3d 1223, 1224 (10th
(...continued)
1
for purposes of this appeal we assume White’s allegations are true.
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Cir. 1998). The one-year period generally begins to run from “the date on which
the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For prisoners
whose convictions became final prior to April 24, 1996, the new limitation period
could have eliminated entirely an opportunity to file a federal habeas petition.
Recognizing this problem, this court has held “that for prisoners whose
convictions became final before April 24, 1996, the one-year statute of limitations
does not begin to run until April 24, 1996.” Hoggro , 150 F.3d at 1225; United
States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).
The one-year limitation period can be tolled by ongoing post-conviction
litigation in state court. See Hoggro , 150 F.3d at 1226. In particular, 28 U.S.C. §
2244(d)(2) provides “[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward” the one-year limitation
period.
Applying these principles, we agree that White’s federal habeas petition
was untimely and was therefore barred by § 2244(d). Because White’s state
conviction became final well prior to Congress’ implementation of the new
limitation period, his one-year period for filing a federal habeas petition began
running on April 24, 1996. It is uncontroverted that White filed a request for
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post-conviction relief in state court on September 13, 1996, and the running of the
one-year filing period was tolled from that point until the request was denied on
December 16, 1996. Although White appealed the denial, his appeal was
untimely and was not “properly filed” for purposes of the tolling statute. See
Hoggro , 150 F.3d at 1226 n.4 (“Section 2244(d)(2) requires a court to subtract
time only for the period when the petitioner’s ‘properly filed’ post-conviction
application is being pursued.”) Accordingly, the one-year limitation period
expired on December 16, 1997. 2
White’s federal habeas petition was filed on
January 30, 1998, well outside the one-year limit. Although White argued he was
entitled to have the limitation period equitably tolled, we find nothing in the
record to support his argument. We agree with the district court that the record
“reveals a consistent history of lack of diligence on [White’s] part and that
[White’s] failure to timely refile his petition . . . was due to his own lack of
diligence.” District Court Order at 6.
White’s application for a certificate of appealability is DENIED and the
If there were no ongoing post-conviction proceedings in state court
2
between April 24, 1996, and September 13, 1996, the one-year limitation period
would have expired even sooner.
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appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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