                                                                        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



 MARSHALL HENRY ELLIS,

          Petitioner-Appellant,
                                                       No. 98-6016
 v.                                             (D.C. No. CIV-97-1274-R)
                                                      (W.D. Okla.)
 STEVE HARGETT, Warden,

          Respondent-Appellee.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL 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 cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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 Marshall Henry Ellis, a state prisoner represented by counsel,

appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition for

untimeliness. We grant Mr. Ellis’ request for a certificate of appealability and

reverse.

      Mr. Ellis was convicted of first degree murder and shooting with intent to

kill and was sentenced to both life and fifty years imprisonment. His conviction

was affirmed by the Oklahoma Court of Criminal Appeals on April 10, 1990, but

the United Sates Supreme Court granted his petition for certiorari and remanded

the case for further consideration. On remand, the Court of Criminal Appeals

reaffirmed his conviction on May 20, 1992. The United States Supreme Court

denied certiorari on November 9, 1992.

      Mr. Ellis filed for state post-conviction relief on April 16, 1997. The state

post-conviction trial court denied the petition on April 28 and eight days later, on

May 6, 1997, Mr. Ellis filed an appeal to the Oklahoma Court of Criminal

Appeals. That court affirmed the denial of post-conviction relief on August 5,

1997. Mr. Ellis filed his federal habeas corpus petition on that same day. The

federal district court adopted the recommendation of the magistrate judge and

dismissed Mr. Ellis’ petition as untimely.

      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2244(d)(1)(A), a state prisoner has one year from the date


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on which his conviction becomes final to file an application for a writ of habeas

corpus in federal court. However, the one year period is tolled during the time a

properly filed application for state post- conviction relief is pending. Id. §

2244(d)(2). In situations such as Mr. Ellis’ where a state conviction became

final prior to AEDPA, this circuit has created a judicial grace period that runs for

one year from the enactment of AEDPA, April 24, 1996, through April 23, 1997.

See United States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997) (applying

same rule to parallel one-year statute of limitation for federal post-conviction

relief under 28 U.S.C. § 2255); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.

1998) (section 2244).

      Mr. Ellis contends the district court was incorrect in holding that the tolling

provision of AEDPA for pending state habeas cases does not apply to the

judicially created grace period, and that it therefore erred in dismissing Mr. Ellis’

petition for federal habeas relief as untimely. We agree. In reversing the district

court, we note that it did not have the benefit of our opinions in Hoggro and

Barnett v. Lemaster, 167 F.3d 1321 (10th Cir. 1999). In Hoggro, 150 F.3d at

1226, we held that a petitioner’s state post-conviction application initiated during

the one-year grace period tolls the period of limitation. In the instant case, Mr.

Ellis filed a petition for state post-conviction relief on April 16, 1997, seven days

before the expiration of the judicial grace period. Pursuant to Hoggro, the period


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of limitation was suspended on April 16, and Mr. Ellis is entitled to the benefit of

those additional seven days.

        The issue then becomes whether the clock starts and stops between each

step of a post-conviction application. The state suggests that it does, asserting

that Mr. Ellis’ petition was untimely despite Hoggro. Although the state concedes

Mr. Ellis had seven days left, it contends the clock ran out during the interim

eight days between the state court’s post-conviction denial on April 28, 1997, and

the filing of Mr. Ellis’ appeal of the denial on May 6, 1998.

        The state is incorrect. We made it clear in Barnett that the clock restarts

only after the final resolution of the post-conviction application. We said there

that the time tolled “encompass[es] all of the time during which a state prisoner is

attempting, through proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application.” 167 F.3d at

1323.

        In the instant case, the one-year period of limitation was tolled on April 16,

1997, when Mr. Ellis timely filed for post-conviction relief, seven days before the

grace period expired. Only after the Oklahoma Criminal Court of Appeals denied

the application on August 5, 1997, did the clock begin to run again. From that

time, Mr. Ellis had seven days to file a federal habeas petition or until August 12,




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1997. Since Mr. Ellis filed for federal habeas relief on August 5, 1997, his

application was timely.

      We REVERSE the judgment of the district court and REMAND for further

proceedings.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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