UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JESSE LEE JAMES,
Petitioner-Appellant,
v. No. 99-7005
H.N. SCOTT, a/k/a/ “SONNY” SCOTT;
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER
Filed May 20, 1999
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
This matter is before the court on its own motion to amend and substitute the order
and judgment entered in this appeal on May 7, 1999. The court has determined amendment
is proper. Consequently, we vacate our prior decision and substitute the attached order and
judgment. Appellees’ motion to publish is denied. The mandate will issue on June 1, 1999
as originally scheduled.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Keith Nelson
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
JESSE LEE JAMES,
Petitioner-Appellant,
v. No. 99-7005
H.N. SCOTT, a/k/a “SONNY” SCOTT; (D.C. No. 98-CV-421-S)
ATTORNEY GENERAL OF THE (E.D. Okla.)
STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
Petitioner Jesse Lee James appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus as time-barred. The district court denied
Petitioner’s request for a certificate of appealability (“COA”). Petitioner’s renewed
application for a COA is pending before us. See 28 U.S.C. § 2253(c)(1). After carefully
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the disposition of this
appeal. See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without
oral argument.
reviewing Petitioner’s application for a COA, his brief and the record, we conclude that
the district court correctly determined that the petition for habeas relief was time-barred
under 28 U.S.C. § 2244(d).
Under § 2244(d)(1)(A), a habeas petition is time-barred if it is not filed within one
year 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.” The Oklahoma court of
Criminal Appeals affirmed Petitioner’s conviction on May 14, 1996. His conviction
became final ninety days later, on August 12, 1996, at the conclusion of the period for
filing a petition for certiorari to the United States Supreme Court. See Griffith v.
Kentucky, 479 U.S. 314, 321 n.6 (1987). Petitioner therefore had one year from August
12, 1996, in which to file his federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A).
The one-year limitation period must be tolled while Petitioner pursued state post-
conviction relief. See 28 U.S.C. § 2244(d)(2). Petitioner filed his application for post-
conviction relief on August 6, 1997, six days before the August 12, 1997, deadline for
filing a federal habeas petition. The limitation period was tolled until August 11, 1998,
when the Oklahoma Court of Criminal Appeals denied his application for post-conviction
relief. Petitioner then had six days, or until August 17, 1998, to file his habeas petition.
Petitioner deposited the petition in the prison mail system on August 21, 1998. See
Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (date habeas petition placed
in prison mail system treated as filing date for purposes of § 2244). Therefore, the
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petition was filed beyond the one-year limitation period. Because the petition was
untimely, the district court properly refused to address the merits of Petitioner’s claim.
Accordingly, we DENY Petitioner’s application for a certificate of appealability and
DISMISS the appeal.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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James v. Scott
Combined Opinion