F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
SONNY LAUREN HARMON,
Petitioner - Appellant,
vs. No. 00-6265
(D.C. No. CIV-00-452-C)
GLYNN BOOHER, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges. **
Mr. Harmon seeks to appeal from the denial of his habeas petition, 28
U.S.C. §§ 2241 and 2254. Upon recommendation of the magistrate judge, the
district court dismissed the action as untimely pursuant to 28 U.S.C.
§ 2244(d)(1)(D).
Mr. Harmon was convicted of operation of a chop shop, possession of a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
motor vehicle with altered VIN number, and conspiracy to operate a chop shop,
all after former conviction of two or more felonies, and sentenced to twenty-year
concurrent terms. The judgments and sentences were entered February 7, 1992,
but did not reflect the former conviction of two or more felonies, which would
result in Mr. Harmon’s ineligibility for “emergency time credits.” Okla. Stat.
Ann. tit. 57, § 573 (West 1991). The judgments were amended on December 3,
1993, but Mr. Harmon continued to receive the credits for years thereafter. He
contends that he was not aware of the factual predicate of his habeas claim until
February 10, 1998, when he received notice of the removal of the credits. See 28
U.S.C. § 2244(d)(1)(D). Even making the dubious assumption that this assertion
is correct, his current federal petition, filed March 6, 2000, is time barred.
Mr. Harmon filed a federal habeas petition raising these matters on April
17, 1998. That petition was dismissed without prejudice on October 21, 1998, for
failure to exhaust state court remedies. We recently held that a federal habeas
petitioner is entitled to toll the period a federal petition is pending before being
dismissed without prejudice for failure to exhaust. Petrick v. Martin, ___ F.3d
___, ___ No. 99-6399, 2001 WL 8313, at *5 (10th Cir. Jan. 3, 2001).
Accordingly, Mr. Harmon would be able to toll the approximately six months
from April 17 to October 21, 1998.
Mr. Harmon then sought state post-conviction relief on June 15, 1999, R.
-2-
doc. 13 at 5; the state district court denied relief on June 17, 1999. Mr. Harmon
appealed to the Oklahoma Court of Criminal Appeals which affirmed the state
district court on September 13, 1999. Accordingly, Mr. Harmon would be entitled
to toll approximately three months from June 15, 1999, to September 13, 1999.
See 28 U.S.C. § 2244(d)(2). As noted, the instant petition was filed March 6,
2000, almost twenty-five months after the factual predicate for the claim
ostensibly became known. Approximately nine months of tolling will not bring
this petition within the one-year limitation period. See 28 U.S.C.
§ 2244(d)(1)(D). Moreover, given Mr. Harmon’s unsuccessful challenges to the
amended judgments that predated the loss of his emergency time credits, this is
hardly a case for equitable tolling.
The motion for leave to proceed without prepayment of fees or costs is
denied; the application for a certificate of appealability is denied for want of a
substantial showing of the denial of a constitutional right, see 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000), and the appeal
is dismissed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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