                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         JUL 12 2002
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 DAVID B. ISHAM,

           Petitioner - Appellant,
 vs.                                                    No. 02-7019
                                                  (D.C. No. 01-CV-325-P)
 MIKE MULLINS, Warden,                                  (E.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


       Petitioner-Appellant David B. Isham, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his habeas petition pursuant to 28 U.S.C. § 2254. Because

we find Mr. Isham’s petition to be time-barred, we dismiss the appeal.

       After being placed in the Pre-Parole Conditional Supervision Program


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
(“PPCS”) in May 1996, Mr. Isham was not at his residence when his parole

officer checked in on him. He was arrested in Ponca City, Oklahoma for public

intoxication and later pleaded guilty to escape from custody, Okla. Stat. Ann. tit.

21, § 443(b), and was sentenced to two years imprisonment on February 14, 1997.

Because Mr. Isham did not seek to withdraw his guilty plea or seek a direct

appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), his conviction

became final ten days later on February 24, 1997. Rule 4.2(A), Rules of the

Oklahoma Court of Criminal Appeals. On October 21, 1999, Mr. Isham filed an

application for state post-conviction relief, the denial of which was affirmed by

the OCCA on March 29, 2001. This petition was filed on May 21, 2001.

      28 U.S.C. § 2244(d) establishes a one-year statute of limitations for filing

an application for a writ of habeas corpus by a person in state custody. The

limitation period runs from the latest of “the date on which the judgement became

final by the conclusion of direct review or the expiration of the time for seeking

such review,” or “the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.”

28 U.S.C. § 2244(d)(1)(A),(C). However, “[t]he time during which a properly

filed application for State post-conviction or other collateral review . . . is

pending shall not be counted toward any period of limitation . . . .” 28 U.S.C. §


                                          -2-
2244(d)(2).

      As noted above, Mr. Isham’s conviction became final on February 24,

1997. Therefore, under § 2244(d)(1), he had until February 23, 1998 to file his

federal petition. Mr. Isham’s state post-conviction actions (beginning October 21,

1999 with his application for state post-conviction relief) cannot toll the period of

limitation because they occurred subsequent to the February 23, 1998 date on

which his habeas petition was due.

      Mr. Isham argues that his petition is timely under § 2244(d)(1)(C) because

of the United States Supreme Court’s decision in Young v. Harper, 520 U.S. 143

(1997), extending due process protections to preparolees, decided on March 18,

1997. Quite apart from the issue of whether Young v. Harper meets the tolling

criteria under § 2244(d)(1)(C), Mr. Isham’s federal petition is still time barred

because that petition was filed more than a year after the Young decision.

      Equitable tolling is appropriate when a prisoner is actually innocent.

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Mr. Isham cannot

demonstrate that he is actually innocent, i.e. he was imprisoned for conduct not

prohibited by law, on the strength of Young v. Harper, 520 U.S. at 152. While

Young v. Harper, extended certain due process protections to preparolees in

connection with preparole revocation, it simply did not negate Oklahoma law that

preparolees may be prosecuted for escape when they cannot be located within a


                                         -3-
twenty-four hour period. See Okla. Stat. Ann. tit. 21, § 443(B) & (C) (1996).

      We DENY the COA and DISMISS the appeal. We also DENY Mr. Isham’s

IFP motion as MOOT as the district court granted IFP.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       -4-
