F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 5 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILLY RAY WILLIAMS,
Petitioner - Appellant,
No. 04-6184
vs. (D.C. No. CV-04-135-T)
(W.D. Okla.)
STEVEN BECK; STATE OF
OKLAHOMA,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Petitioner-Appellant Billy Ray Williams, a state inmate appearing pro se,
seeks to appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254. Upon
recommendation of the magistrate judge, the district court dismissed three of the
claims contained in the petition as time-barred pursuant to 28 U.S.C. § 2244(d)
and not saved by equitable tolling, and then summarily dismissed the one
remaining claim as not cognizable in habeas pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts.
For this court to have jurisdiction over Mr. Williams’ appeal, a certificate
of appealability (“COA”) must be granted. 28 U.S.C. § 2253(c)(1)(A); Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). To make such a showing, Mr. Williams
must demonstrate that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For a denial based upon procedural
grounds, Mr. Williams must demonstrate “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
Mr. Williams pleaded guilty on November 27, 2001 to escape from a
penitentiary after former conviction of a felony and was sentenced to seven years
imprisonment. Because he did not file a timely pleading seeking to withdraw his
guilty plea or seeking a direct appeal, his conviction became final on December 7,
2001, ten days after entry of the judgment. See Okla. Crim. App. R. 4.2(A), Okla.
Stat. tit. 22, ch. 18, app. On October 23, 2002, Mr. Williams moved to modify his
sentence, the motion was granted and the amended judgment and sentence was
filed on October 31, 2002. R. Doc. 15, Ex. 6; Doc. 18 at 2 & 7 n.11. Thus, at
most, the limitation period was tolled for eight days, resulting in the one-year
limitation period expiring on December 17, 2002. See 28 U.S.C. 2224(d)(1)(A) &
(2).
This action was deemed filed on February 2, 2004, and is therefore time-
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barred. Although Mr. Williams sought state postconviction relief subsequent to
December 17, 2002, that would not toll the limitations period. See Fisher v.
Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
On appeal, Mr. Williams argues that because Okla. Stat. Ann. tit. 22,
§ 982a allows a state district court to modify a sentence within twelve months
after imposing it under certain circumstances, no judgment and sentence is final
in Oklahoma until the twelve-month period has run. He also argues that because
an amended judgment and sentence was in fact entered in his case on October 31,
2002, that is when his one-year limitation period under 28 U.S.C. § 2244(d)(1)(A)
begins to run.
Section 2244(d)(1)(A) provides that the one-year period runs from “the date
on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” We agree with the respondents
that the sentence modification procedure is not part of the direct review process
under Oklahoma law. R. Doc. 15 at 3-4; see Orange v. Calbone, 318 F.3d 1167,
1170-71 (10th Cir. 2003) (inquiry is whether state procedure is part of the direct
review process; Oklahoma’s appeal out of time procedure is part of that process).
The motion for sentence modification may be made in the trial court regardless of
whether direct review is pending; the trial court has jurisdiction even if an appeal
of the original judgment and sentence is pending, though it must inform the
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OCCA of the disposition of the motion. Dowdy v. Caswell, 43 P.3d 412, 414
(Okla. Crim. App. 2002). Moreover, we note the original judgment and sentence
(or the events surrounding it) furnishes the predicate of Mr. Williams’ habeas
claims--not the amended judgment and sentence resulting from the sentence
modification.
We are satisfied that the district court’s resolution of the limitations issue is
not debatable or wrong. Accordingly, we DENY Mr. Williams application for a
COA, DENY his request to proceed in forma pauperis as moot, and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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