F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 28 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
EDGAR MILTON THOMPSON,
Petitioner-Appellant,
v. No. 98-3270
(D.C. No. 98-3009-DES)
CHARLES E. SIMMONS; (D. Kan.)
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, the panel has determined
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.
*
This order and judgment is not binding precedent, except under the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.
I.
Edgar Thompson, a state prisoner appearing pro se, seeks a certificate of
appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254
habeas petition on statute of limitation grounds. As Thompson 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 .
Thompson pleaded guilty in 1992 to one count of indecent liberties with a
child and one count of assault, and was sentenced to three to ten years’
imprisonment. His appeal in state court was affirmed. Thompson filed an
application for post-conviction relief on February 26, 1996, and, while the
application was still pending, he filed a habeas petition with the Kansas Supreme
Court based on the same grounds as those asserted in his application. His state
habeas petition was denied on September 6, 1996, and Thompson filed his federal
habeas petition on January 12, 1998. The district court dismissed the petition as
untimely under 28 U.S.C. § 2244(d)(1).
II.
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
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expiration of time for seeking review. 28 U.S.C. § 2244(d)(1)(A). A petitioner
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).
The AEDPA identifies circumstances requiring a tolling of the limitation
period. See 28 U.S.C. § 2244(d)(1) & (2). The only provision relevant here is
“[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. Id. § 2244(d)(2). Although
Thompson had a valid post-conviction application pending in state court from
April 24, 1996, through September 6, 1996, once the Kansas Supreme Court
denied his state habeas petition on September 6, 1996, the clock began to run on
his one-year federal habeas time limitation period. Accordingly, Thompson had
until September 6, 1997, to file a federal habeas petition and his petition filed on
January 12, 1998, was outside the statute of limitations.
Thompson suggests he is actually innocent of the crimes to which he
pleaded guilty. While we have intimated actual innocence may be grounds for
equitable tolling under § 2244(d)(1), we have emphasized that prisoners must
diligently pursue their claims to avail themselves of equitable tolling. See Miller ,
141 F.3d at 978. Further, Thompson has not supported his allegation of
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innocence with evidence sufficient to undermine our confidence in the outcome of
his criminal proceedings. See Schlup v. Delo , 513 U.S. 298, 316 (1995).
Thompson’s application for a certificate of appealability is DENIED and
the appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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