                                                                               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        This order and judgment is not binding precedent, except under the doctrines of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


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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




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