                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 22 1999
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 TERRANCE DEWAYNE HARRIS,

          Petitioner - Appellant,
                                                           No. 98-6318
 v.
                                                     (D.C. No. 97-CV-1474)
                                                  (Western District of Oklahoma)
 RON CHAMPION,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Petitioner Terrance Harris, appearing pro se, appeals the dismissal of his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district

court dismissed Harris’s petition as untimely on the grounds that the statute of

limitations for a habeas corpus petition, as established in the Anti-Terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), had

expired. The district court declined to grant a certificate of appealability.


      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Petitioner now renews his application for a certificate before this court, arguing

that his habeas petition should not be treated as time-barred because of the tolling

provision of 28 U.S.C. § 2244(d)(2). Appeal from a final order in a habeas

corpus proceeding may not be taken unless a circuit justice or judge issues a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). Because Harris has

not made a substantial showing of the denial of a constitutional right, we decline

to grant a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

      “A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court,”

running from “the date on which the judgment became final.” 28 U.S.C. §

2244(d)(1)(A). Prisoners for whom the statute of limitations would have expired

before the effective date of the AEDPA (April 24, 1996), however, are granted an

equitable grace period tolling the statute of limitations until April 23, 1997. See

United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Harris does not

dispute the district court’s conclusion that his conviction became final on July 21,

1995, when the time expired for him to seek review by the Supreme Court. See

Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Therefore, under Simmonds,

he had until April 23, 1997, to file his petition. Harris filed his petition on

October 7, 1997.




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      In calculating the running of the statute of limitations for actions under 28

U.S.C. § 2254, federal courts are required to toll time spent seeking post-

conviction relief in state court. See 28 U.S.C. § 2244(d)(2); Hoggro v. Boone,

150 F.3d 1223, 1226 (10th Cir. 1998).

      Harris filed an application for post-conviction relief on April 21, 1997. On

September 9, 1997, the Oklahoma Court of Criminal Appeals affirmed the trial

court’s order denying post-conviction relief. Harris filed his post-conviction

relief application three days before the expiration of the equitable grace period,

thereby tolling it. However, once the Oklahoma Court of Criminal Appeals

affirmed the denial of that application, on September 9, 1997, the one-year

limitations period once again began to run, leaving petitioner three days to file his

habeas petition. The district court therefore correctly determined that Harris’s

October 9, 1997, petition was filed nearly a month after the expiration of the

limitations period, and thereby untimely.

      On appeal, Harris appears to contend that the district court erred in

adopting the magistrate’s recommendation, on the ground that the magistrate’s

conclusion that the one-year grace period is not extended by a post-conviction

relief application is contrary to Hoggro. However, it is entirely clear from the

district court’s order that it acknowledged the applicability of the tolling period

recognized in Hoggro, and calculated the limitations period for Harris’s


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application in accordance with that case. Petitioner also appears to claim that

additional district court and perhaps circuit court precedent supports his claim

that his petition is not time-barred; however, diligent research has failed to locate

any cases, reported or unreported, corresponding to the titles and docket numbers

cited in his brief.

       Therefore, we agree with the district court that Harris’s petition was

untimely. Harris’s application for a certificate of appealability is denied; his

motion to proceed in forma pauperis is granted. The appeal is dismissed.

       The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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