F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 20 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT LEE CURRY,
Petitioner - Appellant,
v. No. 99-5066
(D. Ct. No. 98-CV-18-K)
KEN KLINGER, (N.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA , MCKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Mr. Curry, pro se, appeals the district court’s denial of his habeas petition
and requests a certificate of appealability. We deny his request for a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) and dismiss the appeal.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
On June 23, 1994, a jury convicted petitioner of first degree murder in
Tulsa County District Court. He was sentenced to life imprisonment on July 8,
1994. Mr. Curry appealed, and on December 27, 1995, the Oklahoma Court of
Criminal Appeals affirmed his conviction and sentence. On December 26, 1997,
petitioner filed an application for post-conviction relief in the state trial court.
The state trial court denied relief on February 13, 1997. Petitioner filed a post-
conviction appeal in the Oklahoma Court of Criminal Appeals on October 20,
1997 which the court dismissed as untimely on November 24, 1997. Petitioner
thereafter filed a federal petition for writ of habeas corpus on January 9, 1998
which the district court denied. The district court also denied a certificate of
appealability. Petitioner timely filed a notice of appeal and seeks a certificate of
appealability from this court.
Mr. Curry argues that the district court erred in finding his habeas corpus
petition time barred. He asserts that because the issues he raised went to the
jurisdiction of the state trial court to try him or indicated his actual innocence of
the crime, he qualified for equitable tolling or a fundamental miscarriage of
justice exception. We disagree.
The Antiterrorism and Effective Death Penalty Act (“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.”
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28 U.S.C. § 2244(d)(1). Generally, the limitation period begins to run on the date
petitioner’s conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). Because
petitioner’s conviction became final before the enactment of the AEDPA, his one-
year limitation period began to run on April 24, 1996, the statute’s effective date.
See, e.g. , Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). Mr. Curry did
not file his federal habeas petition until January 9, 1998 – well past the one-year
limitations period. However, we toll the period of time which Mr. Curry spent
properly pursuing state post-conviction relief. See 28 U.S.C. § 2244(d)(2);
Hoggro , 150 F.3d at 1226. Thus, we toll the limitations period from December
26, 1996 to February 13, 1997, the time during which Mr. Curry’s application for
post-conviction relief in the state trial court was pending. 1
Therefore, petitioner
1
Because Mr. Curry untimely filed his appeal to the Oklahoma Court of Criminal
Appeals, we toll the limitation time only for the period his application for post-conviction
relief was pending in the state trial court. “We may not count the additional time during
which [petitioner] appealed the denial of his application for post-conviction relief because
that appeal was untimely.” Hoggro, 150 F.3d at 1226 n.4.
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had 118 days from February 13, 1997 to file his federal habeas petition. Because
he did not file the petition until January 9, 1998, almost seven months beyond the
appropriate deadline, he is time barred from seeking habeas corpus relief.
Moreover, the facts contained in this record do not support equitably tolling the
AEDPA limitations period.
We therefore deny petitioner’s request for a certificate of appealability
because he has not made a substantial showing of the denial of a constitutional
right. Mr. Curry has failed to demonstrate that the issues raised are debatable
among jurists, that a court could resolve the issues differently, or that the
questions deserve further proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893
n.4 (1983).
This appeal is DISMISSED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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