F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 12 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
LINCOLN EDWARD TAYLOR,
Petitioner - Appellant,
No. 98-6335
v.
(D.C. No. CIV-98-329-T)
(Western District of Oklahoma)
STEVE HARGETT,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Lincoln Edward Taylor appeals the district court’s refusal to grant a
certificate of appealability to appeal the denial of his petition for habeas relief.
We have jurisdiction under 28 U.S.C. § 1291, and affirm.
Petitioner Taylor was convicted by an Oklahoma state court in 1987 on
robbery charges. On March 4, 1998, he filed a habeas petition, challenging his
conviction on various grounds, including double jeopardy and due process. The
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
district court adopted a magistrate judge’s recommendation denying the petition
as time-barred. 1 Concluding that Taylor had failed to demonstrate the denial of a
constitutional right, the court also refused to grant his application for a certificate
of appealability.
In reviewing a denial of a habeas petition, we review the district court
factual findings for clear error, and apply the de novo standard to its legal
conclusions. Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998).
We conclude that the district court correctly denied Taylor’s habeas petition
as time-barred. The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides that “[a] 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State Court.” 28 U.S.C. § 2244(d)(1). For prisoners like Taylor
who were convicted before the passage of the statute, the one year limitation
period does not begin to run until April 24, 1996, AEDPA’s effective date. See
Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).
Taylor filed his petition on March 4, 1998, some 314 days after the
limitation period expired on April 24, 1997. The statute requires us to toll the
1
The district court also accepted the magistrate’s recommendation that even if
Taylor’s claims were considered on the merits, he was not entitled to habeas relief. Given
our conclusion that Taylor’s petition is time-barred, we do not reach the merits of his
appeal.
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approximately 266 days 2 after AEDPA’s effective date that Taylor spent seeking
post-conviction relief in Oklahoma state courts. See 28 U.S.C. § 2244(d)(2).
Even so, Taylor was forty-seven days late in filing his habeas petition, which the
district court correctly dismissed as time-barred.
AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
2
On May 9, 1996, Taylor filed an application for post-conviction relief, which was
denied on June 20, 1996. On October 30, 1996, the Oklahoma Court of Criminal Appeals
affirmed the dismissal of Taylor’s third duplicate application for post-conviction appeal
which he had filed on July 3, 1996. On January 23, 1997, Taylor filed another application
seeking leave to appeal the denial of his first post-conviction application (filed before
AEDPA’s effective date). The Oklahoma Court of Criminal Appeals granted the request
for leave to appeal but ultimately denied the application for post-conviction relief on May
8, 1997. See R. doc. 12 at 5-6.
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