F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 12 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH OSBORNE,
Petitioner-Appellant,
v. No. 99-7015
(D.C. No. 98-CV-338-S)
BOBBY BOONE, Warden; (E.D. Okla.)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
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 Joseph Osborne, a state prisoner appearing pro se, seeks a
*
This order and judgment is not binding precedent, except under the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.
certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 habeas petition as untimely. As Osborne has failed to make a “substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny
a certificate of appealability and dismiss the appeal.
Osborne was convicted of first degree murder and sentenced to life
imprisonment without parole. Following his conviction, Osborne’s counsel filed
a notice of intent to appeal and a designation of record on October 12, 1994,
which listed a complete transcript of all proceedings. Further, on that same date,
the court granted Osborne’s request to be provided a transcript at public expense.
On February 3, 1995, a notice of completion of the record on appeal was filed
with the clerk. Osborne’s conviction and sentence were affirmed by the
Oklahoma Court of Criminal Appeals on October 18, 1995, and the time for filing
a petition for certiorari expired January 16, 1996. He did not file an application
for post-conviction relief. Osborne then filed this § 2254 habeas petition on July
8, 1998.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one-
year limitation period applies to the filing of a habeas petition by a person in
custody pursuant to a state court judgment. The limitation period runs from the
date on which a judgment becomes final by conclusion of direct review or
expiration of time for seeking review. 28 U.S.C. § 2244(d)(1). A petitioner
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whose conviction became final on or before April 24, 1996 (the effective date of
the AEDPA), has one year from that date to file a habeas petition. Miller v. Marr ,
141 F.3d 976, 977 (10th Cir. 1998).
Courts are required to toll the 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.” 28 U.S.C. § 2244(d)(2). Osborne did
not file an application for post-conviction relief. He filed a request for
documents with the district court on June 18, 1996, and this request was denied
on November 20, 1996, after the court concluded he previously had been provided
with all of the documents he was requesting. He filed his second request for
records and transcripts on April 2, 1997, which was followed by his seeking
mandamus relief with the Oklahoma Court of Criminal Appeals when the court
did not rule. His mandamus request was denied on February 13, 1998. His
attempts to obtain trial records and transcripts at public expense are not collateral
proceedings which would result in the tolling of the filing period under §
2244(d)(2). See Hoggro v. Boone , 150 F.3d 1223, 1226-27 (10th Cir. 1998).
This is particularly true here where the record indicates he previously has been
provided with the documents he now asserts were needed to timely pursue a post-
conviction petition.
Osborne asserts the limitation period should be tolled under 28 U.S.C. §
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2244(d)(1)(B) because the state impeded his filing by not providing records and
transcripts. “The one-year time period begins to run in accordance with
individual circumstances that could reasonably affect the availability of the
remedy, but requires inmates to diligently pursue claims.” Miller , 141 F.3d at 978
(citations omitted). Osborne’s assertions are not sufficient to equitably toll the
limitation period. His conviction became final on January 16, 1996, and he had
until April 24, 1997, to file his habeas petition. Osborne filed his habeas petition
on July 8, 1998, which was clearly out of time.
Osborne’s request for a certificate of appealability is DENIED and this
appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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