F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 31 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GREGORY LYNN BARBER,
Petitioner-Appellant,
v. No. 99-6065
(D.C. No. CIV-98-805-C)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant petitioner’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Gregory Lynn Barber appeals the district court’s dismissal of his
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, on the
*
This order and judgment is not binding precedent, except under the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.
ground that it was not timely filed. Because petitioner has not made a substantial
showing of the denial of a constitutional right, we deny his application for
a certificate of appealability and dismiss the appeal.
In November 1993, petitioner was convicted in Oklahoma state court of
Murder in the First Degree and Shooting with Intent to Kill, after former
conviction of two or more felonies, for which he is serving sentences of life
without parole and 1000 years respectively. The Oklahoma Court of Criminal
Appeals affirmed his convictions on August 10, 1995, and they became final
ninety days later, on November 9, 1995, when the time for applying for certiorari
review lapsed.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) took effect, significantly amending the habeas corpus statutes.
One such amendment imposed a one-year limitation on a state prisoner’s right to
bring a federal habeas action, running from the date the prisoner’s conviction
became final. See 28 U.S.C. § 2244(d)(1)(A). The one-year limitation is to be
tolled, however, during the time that a “properly filed” post-conviction
proceeding is pending in state court. See id., § 2244(d)(2). To avoid the
unfairness of retroactively imposing this one-year limitation on state prisoners
whose convictions became final before the AEDPA’s effective date, we
recognized a one-year grace period within which such prisoners could file their
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federal habeas petitions. See Hoggro v. Boone, 150 F.3d 1223, 1225-26
(10th Cir. 1998). This one-year grace period is subject to the § 2244(d)(2) tolling
rule during the pendency of a “properly filed” post-conviction proceeding. See
id. at 1226 & n.4.
Under these rules, petitioner had until April 24, 1997 to file his federal
habeas petition, unless he had a “properly filed” state post-conviction proceeding
pending which would toll the time limit. On April 23, 1997, petitioner filed an
application for post-conviction relief in the state district court. This served to toll
the limitations period one day before it was to expire. On June 12, 1997, the state
court denied post-conviction relief. Petitioner admits that his appeal of the state
court decision was not “properly filed.” Therefore, the time in which petitioner
had to file his federal habeas action began to run upon the state court’s denial of
post-conviction relief, giving him just one more day in which to file his habeas
petition. Petitioner failed to file the petition until June 8, 1998, nearly a year
later. On this basis, the magistrate judge to whom this matter was assigned
recommended dismissing the petition as untimely, and the district court adopted
the recommendation.
Petitioner attempts to obtain a certificate of appealability by arguing that
in his case, the time limitation operated as an unconstitutional suspension of the
writ because he made a colorable showing of actual innocence. After reviewing
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petitioner’s submissions to the district court, however, we agree that he “failed to
set forth evidence creating even a reasonable probability that the jury convicted
the wrong man.” R., doc. 13 at 5. We conclude, therefore, that petitioner has not
made a substantial showing that he was denied a constitutional right. See Miller
v. Marr, 141 F.3d 976, 978 (10th Cir.) (holding that the one-year limitation might
raise constitutional concerns only under limited circumstances such as
incompetence or actual innocence), cert. denied, 525 U.S. 891 (1998).
Petitioner’s application for a certificate of appealability is DENIED, and
the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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