F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 25 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JESUS PEQUENO PEDRAZA,
Petitioner-Appellant,
v. No. 98-7127
(D.C. No. CV-98-12-B)
STATE OF OKLAHOMA; (E.D. Okla.)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, 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). The case is
therefore 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This order and judgment is not binding precedent, except under the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.
Petitioner Jesus Pequeno Pedraza, a state prisoner appearing pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as
untimely. 1 Petitioner’s judgment of conviction was final on October 5, 1996.
Because petitioner’s conviction became final after the effective date of the
Antiterrorism and Effective Death Penalty Act (April 24, 1996), he had one year
from the date the judgment became final to file an application for habeas corpus
relief. See 28 U.S.C. § 2244(d)(1)(A).
Petitioner filed an application for habeas corpus relief with the district
court on January 27, 1997, but the petition was dismissed without prejudice for
failure to exhaust state remedies on September 30, 1997. Petitioner filed the
present petition on January 12, 1998, raising only the exhausted claims from the
first petition. Because the petition was not filed within one year of October 5,
1996, the date on which the judgment of conviction became final, it was
time-barred under the statute.
Petitioner argues that the limitation period was tolled from the time he filed
his first federal habeas petition until the district court dismissed it for failure to
1
We recognize that petitioner filed his notice of appeal more than thirty days
after the order dismissing the petition, see Fed. R. App. P. 4(a)(1), but because
the district court did not enter a separate judgment pursuant to Fed. R. Civ. P. 58,
the time for filing a notice of appeal did not begin to run and, consequently, the
notice of appeal was not untimely. Because remanding for entry of a separate
judgment would not promote judicial economy, we exercise jurisdiction over this
appeal. See Clough v. Rush , 959 F.2d 182, 186 (10th Cir. 1992).
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exhaust, and, therefore, his petition was within the one year limitation period.
Contrary to petitioner’s assertion, the tolling provision in 28 U.S.C. § 2244(d)(2)
does not save his petition. Pursuant to that section, only the time during which a
properly filed application for state post-conviction or other state collateral review
is pending is tolled. See Rhine v. Boone, No. 98-6353, 1999 WL 459312, at *3
(10th Cir. July 7, 1999); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.
1999) (defining “pending” to include “all of the time during which a state
prisoner is attempting, through proper use of state court procedures, to exhaust
state court remedies with regard to a particular post-conviction application”).
Because the federal habeas petition was “neither an application for state
post-conviction review nor an application for other state collateral review,” it
did not toll the limitation period. Rhine, 1999 WL 459312, at *3. Therefore,
the district court correctly dismissed the petition for habeas relief as untimely.
The application for a certificate of appealability is DENIED, and the appeal is
DISMISSED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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Pedraza v. State of Oklahoma
Combined Opinion