F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 23 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD LEE COTHRUM,
Petitioner-Appellant,
v. Nos. 99-5220 & 99-5237
STEVE HARGETT, (D.C. No. 97-CV-491-K)
(N.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
An Oklahoma state jury convicted Petitioner Richard Lee Cothrum in 1989 of first
degree rape, robbery with a dangerous weapon, and kidnapping, all after former
conviction of two or more felonies in Tulsa County, Oklahoma, District Court. The jury
subsequently sentenced Petitioner to 800 years, 300 years, and 400 years imprisonment on
*
This order and judgment is not binding precedent, except under the doctrines of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 the determination of this
appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
each conviction, respectively, with the sentences to run concurrently. Petitioner appealed
and the Oklahoma Court of Criminal Appeals affirmed Petitioner’s conviction and
sentence on November 29, 1989. Petitioner subsequently sought post-conviction relief in
state district court. The state court denied relief, and the Oklahoma Court of Criminal
Appeals affirmed on February 15, 1995. Cothram v. Oklahoma, No. F-86-871, unpub.
mem. op. (Okla. Crim. App. filed Feb. 15, 1995). On May 21, 1997, Petitioner filed a
petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The
district court denied the petition as well as Petitioner’s motion for a certificate of
appealability. See 28 U.S.C. § 2255. Now before us is Petitioner’s renewed motion.1
The district court concluded that Petitioner’s § 2254 petition was untimely because
Petitioner failed to file the petition within the one-year limitations period prescribed by 28
U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Petitioner’s conviction became final on or about February 29, 1990,
after the 90 day time period for filing a petition for writ of certiorari in the United States
Supreme Court had lapsed. See Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir.
1999). Accordingly, Petitioner’s conviction became final before enactment of the
1
In appeal No. 99-5220, Petitioner appeals the district court’s dismissal of his
§ 2254 petition. We abated appeal No. 99-5220 for a period of time pending the district
court’s ruling on Petitioner’s motion for reconsideration. When the district court denied
Petitioner’s motion, we lifted the abatement and the appeal proceeded. Petitioner,
however, filed a second notice of appeal, from the denial of his motion for
reconsideration. This second notice of appeal was opened as No. 99-5237 and was
consolidated with Petitioner’s previous filing, No. 99-5220.
2
AEDPA. Because Petitioner failed to file his § 2254 petition prior to April 24, 1997, the
district court concluded that his petition was untimely and dismissed it. See Hoggro v.
Boone, 150 F.3d 1223, 1225-27 (10th Cir. 1998) (holding that prisoners whose
convictions became final on or before April 24, 1996 must file habeas petitions before
April 24, 1997). While the limitations period is generally tolled during the time a
petitioner has “a properly filed application for State post-conviction or other collateral
review” pending in the state courts, 28 U.S.C. § 2244(d)(2), Petitioner’s only application
for post-conviction relief was filed and resolved prior to the April 24, 1996
commencement of the grace period. Consequently, Petitioner’s post-conviction
proceeding did not toll the limitations period. Further, the district court concluded that
Petitioner failed to demonstrate extraordinary circumstances sufficient to justify equitable
tolling of the limitations period.
A petitioner may appeal the denial of a § 2254 petition only if “a circuit justice or
judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We have
thoroughly reviewed Petitioner’s application for a certificate of appealability, his brief,
the district court’s order, and the entire record before us. We conclude the Petitioner’s
petition is untimely substantially for the reasons set forth in the district court’s order
3
dismissing his petition. Accordingly, we deny Petitioner’s request for a certificate of
appealability and dismiss the appeals.2
CERTIFICATE OF APPEALABILITY DENIED; APPEALS DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
2
Petitioner also filed a Motion to Introduce Appendix, consisting of a newspaper
article. Because the record already contains the article, see Petitioner’s reply brief exhibit
5 and Petitioner’s opening brief on appeal exhibit 1, Petitioner’s motion is DENIED.
4