Romo v. Boone , 22 F. App'x 966 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 16 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHNNIE E. ROMO, SR.,
Petitioner-Appellant,
v. No. 00-7127
BOBBY BOONE, (D.C. No. 00-CV-40-B)
(E.D.Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument and petitioner's request for oral argument is denied.
Petitioner Johnnie Romo seeks a certificate of appealability to appeal the district
court's dismissal of his pro se 28 U.S.C. § 2254 habeas petition. We deny his request for
*
This order and judgment is not binding precedent, except under the doctrines of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.
a certificate of appealability and dismiss the appeal.
Romo pled guilty on October 31, 1990, to willful injuring of public buildings in
connection with damage to prison property while he was incarcerated on an unrelated
offense, and was sentenced to three years' imprisonment. He did not seek to withdraw his
guilty plea and he did not file a direct appeal. His post-conviction application in state
court was pending from March to May of 1999. He filed his federal habeas proceeding
on January 21, 2000, alleging his conviction violated double jeopardy because he
previously had been fined in a prison disciplinary proceeding for the same conduct. The
district court dismissed the habeas action because it was filed beyond the one-year statute
of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2244(d).
A petitioner whose conviction became final on or before April 24, 1996, must file
his or her habeas petition before April 24, 1997. Miller v. Marr, 141 F.3d 976, 978
(1998). The time during which a properly filed application for state post-conviction or
other collateral review is pending is not counted toward the period of limitation. 28
U.S.C. § 2244(d)(2).
Romo contends that State v. Campbell, 965 P.2d 991 (Okla. Crim. App. 1998),
constitutes an intervening change in the law. In Campbell, the Oklahoma Court of
Criminal Appeals (OCCA) held that imposition of a fine following prior imposition of
prison discipline for the same conduct constituted a violation of double jeopardy. Romo
2
argues this intervening change would make his state application for post-conviction relief
timely, which in turn would toll the time for filing under the AEDPA. However, the
OCCA rejected Romo's argument in its order affirming denial of post-conviction relief
and held that even if Campbell was an intervening change in the law, it was not
retroactive. See ROA, Doc. 7, attachment. Further, Romo does not explain how his
request for federal habeas relief could be rendered timely even if his request for state
post-conviction relief was rendered timely under state law.
Romo has not made a substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2). We DENY a certificate of appealability, DENY the request
for oral argument, and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
3