                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JUL 20 2000
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 WILLIAM ALFRED FRANKLIN,

               Petitioner-Appellant,                    No. 99-6449
          v.                                                W.D. Okla.
 STATE OF OKLAHOMA, RON                          (D.C. No. 99-CV-1034-M)
 CHAMPION, Warden

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.            **




      William Franklin, proceeding pro se, appeals the dismissal of his petition

for habeas relief filed under 28 U.S.C. § 2254. He has filed a motion for a

certificate of appealability.




      *
        This order and judgment is not binding precedent, except under the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.

      **
          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.
      In June 1992, Mr. Franklin was convicted of first degree rape, forcible oral

sodomy, lewd or indecent acts with a child under fourteen, and contributing to the

delinquency of a minor, each crime committed after a former conviction of a

felony. He was sentenced to two life sentences, a 75-year sentence, and a one-

year sentence, and a $500.00 fine.

      These convictions were affirmed by the Oklahoma Court of Criminal

Appeals on May 4, 1995. On July 20, 1998, Mr. Franklin filed an application for

post-conviction relief in the state district court. This application was denied by

the district court on September 2, 1998 and this denial was affirmed on appeal on

November 4, 1998. Mr. Franklin filed his § 2254 petition in federal court on July

19, 1999.

      The magistrate judge’s report and recommendation concluded that Mr.

Franklin’s petition should be denied as untimely. Because Mr. Franklin’s

challenged conviction became “final” before the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), the one-year period of

limitation began to run on April 24, 1996. Further, the magistrate found the

tolling provision of § 2242(d)(2) was not implicated because Mr. Franklin did not

file his state application for post-conviction relief within one year of that date.

Because Mr. Franklin did not file this action until July 19, 1999, the magistrate




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concluded his petition was clearly untimely. The district court adopted the

magistrate judge’s report and recommendation.

       We have thoroughly reviewed Mr. Franklin’s application for a certificate of

appealability, his brief, the magistrate judge’s report and recommendation, the

district court’s order and the entire record before us. We deny Mr. Franklin’s

application for a certificate of appealability for substantially the same reasons set

forth in the magistrate judge’s report and recommendation. Accordingly, we deny

his request for a certificate of appealability and dismiss the appeal.



                                           Entered for the Court,



                                           Robert H. Henry
                                           Circuit Judge




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