                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 17 1999
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 JESUS ESQUIVEL,
          Petitioner - Appellant,                         No. 98-6275
 v.                                               (D.C. No. CIV-97-1470-C)
 STEVE KAISER,                                            (W.D. Okla.)
          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining Petitioner-Appellant Jesus Esquivel’s brief and the

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.

      Petitioner seeks a certificate of appealability to appeal the district court’s

dismissal of his writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On


      *
       This order and judgment is not binding precedent, except under the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.
September 9, 1988, Petitioner was convicted in Oklahoma state court of two

counts of kidnapping after a prior felony conviction, feloniously pointing a

weapon after a prior felony conviction, and robbery with a firearm after a prior

felony conviction. The Oklahoma Court of Criminal Appeals reversed

Petitioner’s conviction for feloniously pointing a weapon but affirmed his other

three convictions on October 6, 1993. Petitioner did not timely seek certiorari

review of his convictions.

      Proceeding pro se, Petitioner filed this habeas corpus petition challenging

his three convictions. He also has renewed his request to proceed in forma

pauperis on appeal. His petition is dated September 4, 1997, and was filed on

September 12, 1997. Respondent moved to dismiss the petition as untimely under

28 U.S.C. § 2244(d)(1)(A). In his response to the motion to dismiss, Petitioner

alleged various reasons why the motion should be denied and his time to file

should be equitably extended. The magistrate judge recommended that the motion

to dismiss be granted and that the petition be dismissed as untimely under 28

U.S.C. § 2244(d)(1)(A), even in light of all the available procedural and equitable

tolling provisions. In its Order filed June 19, 1998, the district court adopted the

magistrate judge’s report and recommendation and dismissed the petition as

untimely.

      This court has carefully considered and reviewed Petitioner’s application


                                         -2-
for a certificate of appealability, his brief, and the record. Because Petitioner’s

conviction and sentence became final before April 24, 1996, he had until

April 23, 1997, to file any habeas corpus petition. See United States v.

Simmonds, 111 F.3d 737, 746 (10th Cir. 1997); see also Hoggro v. Boone, 150

F.3d 1223, 1226 (10th Cir. 1998). However, Petitioner’s time for filing was

subject to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2) because he filed an

application for post-conviction relief in Oklahoma state court on April 9, 1997.

That application was denied on June 5, 1997. Thus, Petitioner’s time for filing

was tolled for a period of fifty-eight days. Even with this statutory tolling period,

however, Petitioner would have had to file his application by June 20, 1997. His

September filing was therefore untimely. Further, we agree with the magistrate

judge and the district court that no equitable tolling principles apply to make this

petition timely. Because the section 2254 petition was time-barred, the district

court properly refused to address the merits of Petitioner’s claims.

      Accordingly, we DENY Petitioner’s request to proceed in forma pauperis




                                          -3-
on appeal, DENY him a certificate of appealability, and DISMISS the appeal. 1




                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




      Having reviewed the “Brief of Petitioner,” construed by this court as a
      1

motion to file a supplemental brief, we conclude that it is not helpful to our
determination of this matter. Therefore, the motion is DENIED.

                                        -4-
