                         UNITED STATES COURT OF APPEALS
                                     Tenth Circuit
                          Byron White United States Courthouse
                                   1823 Stout Street
                                Denver, Colorado 80294
                                    (303) 844-3157
Patrick J. Fisher, Jr.                                                    Elisabeth A. Shumaker
Clerk                                                                     Chief Deputy Clerk

                                        April 29, 1999


       TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT

       RE: 98-5251, Jackson v. Champion
           April 28, 1999


             Please be advised footnote 4 should have been omitted from the text on
       page four. A corrected copy of the Order and Judgment is attached for your
       convenience.



                                                  Very truly yours,
                                                  Patrick Fisher, Clerk


                                                  Trish Lane
                                                  Deputy Clerk
                                                                             F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             APR 28 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 MARCEL LAMAR JACKSON,

          Petitioner - Appellant,
                                                        No. 98-5251
 v.
                                                   (D.C. No. 98-CV-26-B)
                                               (Northern District of Oklahoma)
 RONALD J. CHAMPION,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Marcel Jackson, pro se, appeals the district court’s denial of his habeas

petition and requests a certificate of appealability. Exercising jurisdiction under

28 U.S.C. § 1291, we deny his request for a certificate of appealability pursuant

to 28 U.S.C. § 2253(c).

      On January 4, 1994, Petitioner Jackson pled nolo contendere in an

Oklahoma state trial court to illegal drug possession after a prior felony


      *
       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.
conviction. Upon receiving a 20-year jail sentence and a fine of five hundred

dollars, Jackson filed a motion to withdraw his plea. The trial court denied the

motion, and the Oklahoma Court of Criminal Appeals affirmed.

      Subsequently, Jackson unsuccessfully sought state post-conviction relief.

On January 12, 1998, he filed a petition for habeas corpus in the United States

District Court for the Northern District of Oklahoma. The district court denied

the petition as time-barred under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). The court also denied Jackson’s petition for a certificate of

appealability because he had failed to make a substantial showing of the denial of

a constitutional right.

      Jackson argues that the district court violated various provisions of the

United States Constitution, including the Due Process Clause of the Fifth

Amendment, 1 when it dismissed his petition and denied his request to amend his


      1
        Additionally, Jackson argues that in denying his habeas petition and
request for a certificate of appealability, the district court violated the Suspension
Clause of Article I, Section 9, of the United States Constitution. Although
“[t]here may be circumstances where [AEDPA’s] limitation period at least raises
serious constitutional questions,” see Miller v. Marr, 141 F. 3d 976, 978 (10th
Cir.), cert. denied, 119 S.Ct. 210 (1998), we will not reverse a district court’s
application of the limitation period when, as in this case, “we are satisfied that
such circumstances are not implicated.” Id. Jackson also claims that the district
court violated the 10th and 14th Amendments to the Constitution. His 10th
Amendment argument turns on how Oklahoma law defines a “properly filed”
post-conviction application. In dismissing Jackson’s argument that his
application for post-conviction relief was properly filed in Oklahoma state courts,
                                                                          (continued...)

                                         -2-
reply to the state’s motion to dismiss. He also claims that the district court

erroneously failed to toll the time he spent exhausting state remedies and seeking

post-conviction relief.

      AEDPA provides that “[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.” 28 U.S.C. § 2244(d)(1). Generally, the limitation

period begins to run on the date that the prisoner’s conviction becomes final.

Because his conviction became final before the enactment of AEDPA, Jackson’s

one-year limitation period began to run on April 24, 1996, the statute’s effective

date. 2 See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

Jackson sought habeas review on January 12, 1998, some 628 days after the


      1
       (...continued)
the court essentially adopted the Oklahoma appellate court’s definition of what
constitutes a properly filed application for post-conviction relief under Oklahoma
law. Because Jackson fails to show how the court’s decision detracts from
powers the Constitution reserves to the states, we reject his 10th Amendment
argument. For the reasons discussed below, we see no merit in Jackson’s
argument that the district court violated his 14th Amendment due process and
equal protection rights.
      2
         Johnson’s argument that his limitation period began to run on May 12,
1997, the date “he finished exhausting state remedies” is without merit. His
conviction became final on January 4, 1995, following the expiration of his time
for filing for certiorari review upon exhaustion of state remedies available on
direct appeal. See Earnest v. Dorsey, 87 F.3d 1123, 1132 (10th Cir. 1996)
(citation omitted). See also Sup. Ct. R. 13 (stating that party seeking certiorari
review must file his petition within ninety days from the date of entry of judgment
or order sought to be reviewed).

                                         -3-
limitation period began to run. We are required, however, to toll the 128 days 3

Jackson spent properly pursuing state post-conviction relief. See 28 U.S.C. §

2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Even after

we toll this period, Jackson filed his habeas petition outside the one year

limitation period. The district court thus correctly dismissed his petition as time-

barred.

      The district court also correctly denied Jackson’s request to amend his reply

to the state’s motion to dismiss. Jackson argues that his amended reply would


      3
         In deciding that Jackson spent 128 days properly pursing post-conviction
relief in Oklahoma state courts, we count the time between June 18, 1996, when
he filed his petition for post-conviction relief, and July 29, 1996, when the state
trial court denied the petition. Because we are required to subtract time only for
the period a petitioner’s “properly filed” post-conviction relief application is
being pursued, see 28 U.S.C. § 2244(d)(2), we do not count the 111 days between
the time Jackson filed his post-conviction appeal on September 3, 1996, and
December 23, 1996, when the Oklahoma Court of Criminal Appeals dismissed the
appeal as untimely. See Okla. Stat. tit. 22, § 1087 (stating that an applicant has
30 days from the entry of judgment to file a petition in error with the state
appellate court). But because Oklahoma law provides that an applicant can seek
leave to file an appeal out of time, see Smith v. State, 611 P.2d 276 (Okla. Crim.
App. 1980), we count the time between February 14, 1997, when Jackson filed an
application in the state trial court for a post-conviction appeal out of time, and
May 12, 1997, when the state appellate court affirmed the denial of his request.
We note, however, that even were we to toll the 111 days, Jackson would have
filed his petition some 389 days after AEDPA’s effective date, still outside the
one year statute of limitation period. Jackson also faults the district court for
concluding that January 12, 1998, the date it received his petition, was the date on
which he sought habeas relief. He argues that we should apply the mailbox rule
and use January 8, 1998, the date he placed his petition in the prison mail room,
as the filing date. Even with this date, however, his petition does not fall within
the limitation period.

                                        -4-
have shown that he filed his petition late because the state denied, inter alia, his

First Amendment right of access to the courts. Jackson fails to demonstrate in his

motion before the district court or in his petition on appeal how the state denied

his rights of access to the courts. Because Jackson does not make a substantial

showing of the denial of a constitutional right, his request for a certificate of

appealability must be denied. See 28 U.S.C. § 2253(c)(2).

      DISMISSED. The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -5-
