F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
FERNANDO HERNANDEZ, also
known as Fernie Hernandez,
Petitioner-Appellant,
v. No. 98-2042
(D.C. No. CIV-97-1087)
TIM LEMASTER; ATTORNEY (D. N.M.)
GENERAL FOR THE STATE OF
NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, 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). Therefore, the
case is ordered submitted without oral argument.
Petitioner Fernando Hernandez, a state prisoner appearing pro se, appeals
*
This order and judgment is not binding precedent, except under the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.
the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition on statute of
limitations grounds. We affirm.
Hernandez pleaded guilty to several state crimes in 1995 and was sentenced
to twenty-five years’ imprisonment. He did not file a direct appeal. On April 17,
1997, he attempted to file a habeas petition in state court, but his petition was not
properly filed until June 6, 1997. The petition was denied on July 11, 1997, and
certiorari was denied by the state supreme court on July 23, 1997. Hernandez
allegedly “applied immediately with [prison authorities] for a copy of [his] inmate
account ledger [which] is required to file an application for habeas corpus in
Federal Court.” Hernandez’ Memorandum Br. at 3. He allegedly “received this
(IFC) inmate financial certificate on August 7, 1997.” Id. He filed his federal
habeas petition on August 8, 1997, accompanied by his request to proceed in
forma pauperis and his inmate financial certificate. The district court adopted the
magistrate’s recommendation and dismissed the petition. The district court issued
a certificate of appealability.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
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.” Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). The AEDPA
established a one-year time limitation for filing petitions and mandated that the
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period begin to run on the “date on which the judgment [of conviction] 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). To avoid potential injustices, we have
held that for prisoners “whose convictions became final before April 24, 1996, the
one-year statute of limitation does not begin to run until April 24, 1996.”
Hoggro, 150 F.3d at 1225. The AEDPA identifies a number of circumstances
requiring a tolling of the limitations period. See 28 U.S.C. § 2244(d)(1) & (2).
In particular, “[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 time limit.
§ 2244(d)(2). We have also indicated the one-year period of limitations “may be
subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, 119 S. Ct. 210 (1998).
Hernandez asks us to toll not only the time during which his state post-
conviction proceedings were pending (June 6 to July 23, 1997), but also (1) the
time from April 17 until June 6, 1997, while he was communicating with the state
court regarding proper filing of his post-conviction application, (2) the time from
July 23 to July 28, 1997, while he was allegedly waiting to receive a copy of the
state supreme court’s denial of certiorari, and (3) the time from July 28 to August
7, 1997, while he was allegedly waiting for prison officials to complete his inmate
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financial certificate.
Although we are bound by statute to toll the time during which his state
post-conviction proceedings were pending, we refuse to equitably toll any other
time. In Miller, we indicate equitable tolling principles apply only where a
prisoner has diligently pursued federal habeas claims. 141 F.3d at 978. See
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (one-year limitation period
of AEDPA will be equitable tolled only “in rare and exceptional circumstances”);
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 rights). Here,
there is no indication in the record that Hernandez took any steps to pursue his
federal claims between April 24, 1996, and April 17, 1997. Hernandez’ one-year
period of limitation expired on April 23, 1997, prior to his filing of an application
for post-conviction relief in state court.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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