F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 19 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
JOHNNIE E. ROMO, SR.,
Petitioner - Appellant,
v. No. 99-6045
OKLAHOMA DEPARTMENT OF
CORRECTIONS; PAUL MERTZ; and
MANSFIELD LAW ENFORCEMENT
CENTER,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 98-CV-794-L)
Gloyd L. McCoy of Coyle & McCoy, Oklahoma City, Oklahoma, for Petitioner-
Appellant.
(Johnnie E. Romo, Sr., pro se.)
Alecia A. George, Assistant Attorney General (W. A. Drew Edmondson, Attorney
General of Oklahoma, with her on the brief), for Respondents-Appellees.
_________________________
Before SEYMOUR, Chief Judge, McKAY and EBEL, Circuit Judges.
_________________________
McKAY, Circuit Judge.
_________________________
Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254
in the United States District Court for the Western District of Oklahoma on
June 8, 1998. The district court dismissed the petition as time-barred. On
August 3, 1999, we granted Petitioner a certificate of appealability with respect to
the timeliness issue.
Petitioner was convicted in an Oklahoma trial court of robbery with
firearms after former conviction of two or more felonies. The Oklahoma Court of
Criminal Appeals affirmed his conviction on direct appeal on September 22,
1993. He did not seek certiorari review by the Supreme Court within ninety days,
and his conviction became final for purposes of habeas review on or about
December 22, 1993. See 28 U.S.C. § 2244(d)(1)(A). Because the time period for
Petitioner to file a habeas corpus petition expired well before the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], Petitioner
had one year from April 24, 1996, in which to file. See Hoggro v. Boone , 150
F.3d 1223, 1226 (10th Cir. 1998) (noting deadline of April 24, 1997). Under
Hoggro , the one-year limitations period is tolled by any state post-conviction
applications properly filed during that year. See id. ; 28 U.S.C. § 2244(d)(2).
Although Petitioner’s post-conviction relief application filed in Oklahoma district
court tolled the limitation period from February 11, 1997, to June 13, 1997, his
petition was still due by August 23, 1997. However, Petitioner did not file the
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§ 2254 petition until June 8, 1998.
On appeal, Petitioner makes two arguments that his petition is nevertheless
timely. First, he claims that this petition is a continuation of prior litigation filed
by a large number of petitioners before the enactment of AEDPA. That litigation,
which included Petitioner’s claim that delay in his state direct appeal violated his
constitutional rights, is known as the Harris litigation. See Harris v. Champion,
15 F.3d 1538 (10th Cir. 1994) (Harris II); Harris v. Champion, 938 F.2d 1062
(10th Cir. 1991) (Harris I). Citing McWilliams v. Colorado, 121 F.3d 573 (10th
Cir. 1997), Petitioner argues that the present case is a “continuation” of his earlier
petition. Id. at 575. McWilliams is inapposite. The petitioner in McWilliams
filed a first petition that was dismissed for failure to exhaust state remedies.
After further state law action, the petitioner refiled the same petition making
substantially similar claims. Holding that it was a second or successive habeas
corpus application barred under AEDPA, the district court dismissed the refiled
petition. We reversed, stating that it was not a second or successive application
within the meaning of 28 U.S.C. § 2244(b)(1). Rather, it was “simply a
continuation of the earlier petition.” Id. Here, Petitioner raises claims
substantially different from those raised in his prior petition. Furthermore, while
the original petition in McWilliams was dismissed without prejudice for failure to
exhaust state remedies, Petitioner’s original petition was decided on the merits in
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Romo v. Cowley, 89 F.3d 851, 1996 WL 308709 (10th Cir. 1996) (Table). It was
not dismissed for failure to exhaust state remedies. Petitioner’s current habeas
action therefore cannot be deemed a “continuation” of his prior litigation under
McWilliams. 1
Even if this petition were a continuation of prior litigation under the
precedent set forth in McWilliams, that would not end the timeliness inquiry. The
issue of timeliness was not before the McWilliams court. Asserting that this
habeas corpus action is a continuation of his former petition, Petitioner apparently
argues that its filing should relate back to the time when his former petition was
filed. Because we hold that this petition is not a continuation of prior litigation
within the meaning of McWilliams, we do not address that argument.
Petitioner’s second challenge is based on a claim that the time during which
the Harris claim was pending should have tolled the one-year limitations period
under 28 U.S.C. § 2244(d)(1)(B). This section of AEDPA provides a one-year
period of limitation for habeas corpus applications running, for purposes relevant
1
Our decision in Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997),
also persuades us that Petitioner’s current petition is not a continuation of his
prior litigation in Harris. In Reeves, we held that where a first § 2254 petition
was filed as part of the Harris II litigation, which only addressed whether the
delay in state appellate review violated due process rights, a subsequent petition
is unrelated and is not a second or successive petition for purposes of AEDPA.
Because the Harris II litigation was unrelated to the claims of trial error asserted
in the latter petition, the latter petition is not a continuation of the former.
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here, from “the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action.” Id.
Because the issues in Harris went only to appellate delay and not to the
issues raised here, the pendency of the Harris litigation did not prevent Petitioner
from exhausting state remedies until the Harris litigation was complete. His
conviction was affirmed on appeal in 1993 during pendency of the Harris
litigation, and the continuing litigation did not prevent his seeking state collateral
review of the issues raised in this petition. We therefore hold that the time spent
pursuing the Harris litigation did not toll the time for bringing this petition.
Because Petitioner’s timeliness claim is dependent upon his Harris tolling
claim, his petition is untimely. We therefore affirm the district court’s dismissal
of his habeas corpus petition. 2
AFFIRMED.
2
During the pendency of this appeal, Petitioner filed a “Motion to Stay
Proceedings” in this case. Before we could act on this motion, Petitioner filed
“An Application to Withdraw Motion to Stay Proceedings.” Petitioner’s
application to withdraw is granted, and we do not address the particulars of the
motion to stay the proceedings.
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