                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            NOV 23 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 TERRY DEAN BATES,

           Petitioner-Appellant,
 v.                                                       No. 99-5144
 LENORA JORDAN,                                     (D.C. No. CV-98-973-H)
                                                          (N.D.Okla.)
           Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY and BRISCOE, 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.

       Terry Dean Bates, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition for writ of habeas corpus. We deny his request for a certificate of


       This order and judgment is not binding precedent, except under the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.
appealability and dismiss the appeal.

                                          I.

      In early 1992, Bates was charged in the District Court of Pawnee County,

Oklahoma, with various sex crimes. On October 19, 1992, Bates pled guilty to

four of those charges: attempted rape, sexual battery, first degree rape, and oral

sodomy, all after former conviction of a felony. Immediately following the entry

of his guilty plea, Bates was sentenced to concurrent terms of imprisonment of

twenty years (attempted rape), ten years (sexual battery), life (first degree rape),

and twenty years (oral sodomy). On November 2, 1992, Bates filed a pro se

motion to withdraw his guilty plea. The motion was summarily denied by the trial

court on November 30, 1992, and Bates did not attempt to file a direct appeal.

      On July 18, 1995, Bates filed a pro se pleading with the trial court entitled

“Application for Leave to Appeal Out of Time, In the Alternative Petitioner

Requests an Order Vacating the Order Denying Application to Withdraw Guilty

Plea.” The trial court construed the pleading as an application for post-conviction

relief, appointed counsel for Bates, conducted an evidentiary hearing, and

ultimately denied relief on January 27, 1997. Bates appealed to the Oklahoma

Court of Criminal Appeals, which affirmed the trial court’s denial of post-

conviction relief on May 8, 1997.

      On May 28, 1998, Bates filed a second application for post-conviction


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relief with the trial court. The trial court summarily dismissed the application on

June 15, 1998. Bates appealed the trial court’s order to the Oklahoma Court of

Criminal Appeals, which affirmed the trial court’s decision on August 21, 1998.

       Bates filed his federal habeas petition on October 7, 1998. Respondent

moved to dismiss, asserting Bates’ petition was untimely. On July 2, 1999, the

district court granted the motion to dismiss and dismissed Bates’ petition.

Although Bates requested a certificate of appealability, the district court denied

his request. Bates now seeks a certificate of appealability from this court.

                                          II.

       On April 24, 1996, Congress amended what had been “the long-standing

prior practice in habeas corpus litigation that gave a [state] prisoner virtually

unlimited amounts of time to file a habeas petition in federal court,” and

“established a one-year period of limitations for [federal] habeas petitions.”

Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28 U.S.C.

§ 2244(d)(1)). By statute, the one-year period of limitations generally begins

running from “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). For prisoners whose convictions became final prior to April 24,

1996, however, the new “one-year statute of limitations does not begin to run

until April 24, 1996.”   Hoggro , 150 F.3d at 1225; United States v. Simmonds ,


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111 F.3d 737, 744-46 (10th Cir. 1997).

       The one-year period of limitations can be tolled by ongoing post-

conviction litigation in state court.    See Hoggro , 150 F.3d at 1226. In particular,

28 U.S.C. § 2244(d)(2) provides “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward” the one-year

period of limitation. We have also indicated the one-year period of limitations

“may be subject to equitable tolling.”     Miller v. Marr , 141 F.3d 976, 978 (10th

Cir.), cert. denied , 119 S. Ct. 210 (1998).

       Here, a review of the record on appeal demonstrates, without question, that

Bates’ federal habeas petition was untimely. Because Bates’ state convictions

became final prior to the enactment of the AEDPA, his one-year period of

limitations for filing a federal habeas petition began running on April 24, 1996,

the effective date of the AEDPA. From that date through May 8, 1997, the

limitations period was tolled due to the pendency of Bates’ application for state

post-conviction relief. After May 8, 1997, the limitations period ran unabated

and expired on May 8, 1998, approximately seventeen months prior to the filing

of Bates’ federal habeas petition. Although Bates argues the limitations period

should have been tolled until the Oklahoma state courts resolved his second

application for post-conviction relief, he offers no reason why we should


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equitably toll the lengthy period of time between the completion of his first

application for post-conviction relief (May 8, 1997) and the filing of his second

application (May 28, 1998).    See Miller , 141 F.3d at 978 (indicating that

equitable tolling principles apply only where a prisoner has diligently pursued his

federal habeas claims);   see also Davis v. Johnson , 158 F.3d 806, 811 (5th Cir.

1998) (AEDPA’s one-year limitation period will be equitably tolled only “in rare

and exceptional circumstances”),    cert. denied , 119 S. Ct. 1474 (1999).

      Because Bates has failed to make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his application for a

certificate of appealability and DISMISS the appeal. Bates’ application for

certification of questions to state court is DENIED. The mandate shall issue

forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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