                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            APR 10 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 DAVID E. BROWNING, JR.,

           Petitioner-Appellant,
 v.                                                       No. 00-6391
 L. L. YOUNG, Warden,                               (D.C. No. 00-CV-924-W)
                                                          (W.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.

       Petitioner David E. Browning, Jr., a state prisoner appearing pro se, seeks

a certificate of appealability to appeal the district court’s dismissal of his 28



       This order and judgment is not binding precedent, except under the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.
U.S.C. § 2254 petition for writ of habeas corpus as untimely. We deny the

request for a certificate of appealability and dismiss the appeal.

      Browning pled guilty to possession of a knife in a penal institution on

March 23, 1994. He did not appeal his conviction. On February 22, 1999, he

filed an application for post-conviction relief in state court, contending the

conviction violated double jeopardy principles and the court abused its discretion

by not following the rule announced in   State v. Campbell , 965 P.2d 991 (Okla.

Ct. Crim. App. 1998). His application was denied on March 23, 1999. On May

27, 1999, the Oklahoma Court of Criminal Appeals affirmed the denial. The

court found Browning's double jeopardy claim could have been raised on direct

appeal. The court also found that   Campbell was not to be applied retroactively

(finding "[a]s a general rule of law in Oklahoma, decisions of the highest court

are prospective in application unless specifically declared to have retroactive

effect"). Record, Doc. 9, Exh. C.

      Browning filed his § 2254 petition on May 18, 2000. Respondent filed a

motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d), and

Browning filed a reply to the motion. On September 29, 2000, the magistrate

court issued its report and recommendation. Browning filed objections to the

magistrate's report. On October 26, 2000, the district court adopted the

magistrate's report and dismissed the habeas petition as untimely filed.


                                          2
      As Browning filed his habeas petition on May 18, 2000, the provisions of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply.       See

Lindh v. Murphy , 521 U.S. 320, 336 (1997). Under 28 U.S.C. § 2244(d)(1) and

Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998), Browning had until

April 23, 1997, to file his habeas petition. He did not seek post-conviction relief

in state court during the applicable limitation period and his application for post-

conviction relief filed in February 1999 did not toll the running of the limitation

period.

      Browning's request for a certificate of appealability is DENIED. The

appeal is DISMISSED. Browning's motion to proceed on appeal in forma

pauperis is DENIED. The mandate shall issue forthwith.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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