Harris v. Champion ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 22 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
TERRANCE DEWAYNE HARRIS,
Petitioner - Appellant,
No. 98-6318
v.
(D.C. No. 97-CV-1474)
(Western District of Oklahoma)
RON CHAMPION,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Petitioner Terrance Harris, appearing pro se, appeals the dismissal of his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district
court dismissed Harris’s petition as untimely on the grounds that the statute of
limitations for a habeas corpus petition, as established in the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), had
expired. The district court declined to grant a certificate of appealability.
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Petitioner now renews his application for a certificate before this court, arguing
that his habeas petition should not be treated as time-barred because of the tolling
provision of 28 U.S.C. § 2244(d)(2). Appeal from a final order in a habeas
corpus proceeding may not be taken unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). Because Harris has
not made a substantial showing of the denial of a constitutional right, we decline
to grant a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
“A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court,”
running from “the date on which the judgment became final.” 28 U.S.C. §
2244(d)(1)(A). Prisoners for whom the statute of limitations would have expired
before the effective date of the AEDPA (April 24, 1996), however, are granted an
equitable grace period tolling the statute of limitations until April 23, 1997. See
United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Harris does not
dispute the district court’s conclusion that his conviction became final on July 21,
1995, when the time expired for him to seek review by the Supreme Court. See
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Therefore, under Simmonds,
he had until April 23, 1997, to file his petition. Harris filed his petition on
October 7, 1997.
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In calculating the running of the statute of limitations for actions under 28
U.S.C. § 2254, federal courts are required to toll time spent seeking post-
conviction relief in state court. See 28 U.S.C. § 2244(d)(2); Hoggro v. Boone,
150 F.3d 1223, 1226 (10th Cir. 1998).
Harris filed an application for post-conviction relief on April 21, 1997. On
September 9, 1997, the Oklahoma Court of Criminal Appeals affirmed the trial
court’s order denying post-conviction relief. Harris filed his post-conviction
relief application three days before the expiration of the equitable grace period,
thereby tolling it. However, once the Oklahoma Court of Criminal Appeals
affirmed the denial of that application, on September 9, 1997, the one-year
limitations period once again began to run, leaving petitioner three days to file his
habeas petition. The district court therefore correctly determined that Harris’s
October 9, 1997, petition was filed nearly a month after the expiration of the
limitations period, and thereby untimely.
On appeal, Harris appears to contend that the district court erred in
adopting the magistrate’s recommendation, on the ground that the magistrate’s
conclusion that the one-year grace period is not extended by a post-conviction
relief application is contrary to Hoggro. However, it is entirely clear from the
district court’s order that it acknowledged the applicability of the tolling period
recognized in Hoggro, and calculated the limitations period for Harris’s
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application in accordance with that case. Petitioner also appears to claim that
additional district court and perhaps circuit court precedent supports his claim
that his petition is not time-barred; however, diligent research has failed to locate
any cases, reported or unreported, corresponding to the titles and docket numbers
cited in his brief.
Therefore, we agree with the district court that Harris’s petition was
untimely. Harris’s application for a certificate of appealability is denied; his
motion to proceed in forma pauperis is granted. The appeal is dismissed.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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