F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
LONNIE LEE ANDERSON,
Petitioner-Appellant,
v.
No. 99-8093
VANCE EVERETT, Warden of the (D.C. No. 98-CV-179-D)
Wyoming State Penitentiary, and the (D. Wyo)
ATTORNEY GENERAL OF THE
STATE OF WYOMING,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
Petitioner-Appellant Lonnie Lee Anderson (“Anderson”) appeals the
district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. Anderson pleaded guilty to two counts of second degree sexual assault on
July 7, 1995 and was sentenced on October 17, 1995 to a period of not less than
*
After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
20 years, nor more than twenty-five years in the Wyoming State Penitentiary, with
two days served off the minimum and maximum terms. Anderson, proceeding pro
se, argues (1) ineffective assistance of counsel for failure to notify him of his
right to appeal, (2) violations of his Fifth Amendment rights prior to his guilty
plea, and (3) prosecutorial misconduct and coercion allegedly made prior to his
guilty plea. In the district court, the state of Wyoming moved to dismiss the
petition as time-barred. The district court subsequently dismissed the petition as
untimely and therefore barred by AEDPA’s statute of limitations. Anderson now
applies to this court for a certificate of appealability and asks us to address the
merits of his petition. 1
After reviewing Anderson’s application for a certificate of appealability,
his brief, and the record, we conclude that the district court correctly determined
that the petition is time-barred. Anderson was sentenced on October 17, 1995,
and failed to appeal, therefore his conviction became final upon the expiration of
30 days. See Wyo. R. App. P. 2.01(a). Because his conviction was clearly final
before April 24, 1996, Anderson had until April 23, 1997 to file a habeas petition
pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d); Hoggro v. Boone, 150
Although the district court did not act on the issue of a certificate of
1
appealability, the certificate of appealability is deemed denied by the district court
pursuant to this court’s General Order of October 1, 1996. See Tenth Circuit
Emergency General Order of October 1, 1996.
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F.3d 1223, 1225 (10th Cir. 1998). Anderson, however, filed his petition for a writ
of habeas corpus on July 10, 1998, more than a year after his time to file expired.
Although the one-year period can be tolled while a petitioner pursues state post-
conviction relief, these tolling provisions will not apply when a petitioner does
not pursue such relief until after the one year period has expired. See Allen v.
State of Oklahoma, No. 99-6033, 1999 WL 492804, at * 1 (10th Cir. July 13,
1999) (refusing to toll the one-year period while Petitioner pursued state post-
conviction relief when he did not seek such relief until four months after the one-
year period of limitation had expired). Thus, because Anderson did not pursue
state post-conviction relief until October 2, 1997, over five months after the one-
year period of limitations had expired, his application for state post-conviction
relief did not toll the one-year limitations period.
Furthermore, Anderson has failed to set forth any legitimate basis for
equitably tolling the running of the limitations period. We have previously stated
that a petitioner must diligently pursue his claim before we will apply equitable
tolling. Miller v Marr, 141 F.3d 976, 978 (10th Cir. 1998). Anderson has offered
no explanation for the untimely filing of his petition for writ of habeas. We
therefore agree with the district court that Anderson’s petition is untimely, and
conclude that the district court properly refused to address the merits of
Anderson’s habeas corpus petition. Accordingly, we deny Anderson’s application
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for a certificate of appealability. Moreover, because we find that Anderson’s
appeal is frivolous and fails to present a substantial question, we deny his motion
to proceed In Forma Pauperis.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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